Opinion
No. 84, 1999.
September 9, 1999.
Appeal from the Superior Court, Sussex County, CrA 96-03-0151; 0159; 0176; 0185; 0214; 0219; 0231; 0239; 97-05-0568.
AFFIRMED
Unpublished Opinion is below.
MICHAEL D. KIRBY, Defendant Below-Appellant, v. STATE OF DELAWARE, Plaintiff Below-Appellee. No. 84, 1999. Supreme Court of Delaware. September 9, 1999.
Court Below — Superior Court of the State of Delaware, in and for Sussex County, Cr.A. Nos. 96-03-0151; 0159; 0176; 0185; 0214; 0219; 0231; 0239; 97-05-0568.
Before HOLLAND, HARTNETT and BERGER, Justices
ORDER
This 9th day of September 1999, upon consideration of the briefs on appeal and the record below, it appears to the Court that:
(1) The defendant-appellant, Michael D. Kirby ("Kirby"), filed this appeal from an order of the Superior Court denying his motion for postconviction relief pursuant to Superior Court Criminal Rule 61 ("Rule 61"). We find no merit to the appeal. Accordingly, we affirm.
(2) In this appeal, Kirby claims, first, that he should not have been declared an habitual offender because he did not have an opportunity for rehabilitation in the form of psychological treatment and, second, that his two previous motions for postconviction relief should have been decided on their merits rather than denied on procedural grounds.
(3) A jury found Kirby guilty of nine counts of Burglary Second Degree. The Superior Court found him to be an habitual offender and sentenced him to nine consecutive life terms. Kirby appealed his sentence to this Court. While his appeal was pending, he filed a motion for postconviction relief in the Superior Court. The Superior Court declined to decide Kirby's motion while his case was on appeal. This Court affirmed the convictions, but remanded the matter to the Superior Court for resentencing. The Superior Court resentenced Kirby to life imprisonment at Level V on one count of Burglary Second Degree and to a total of 8 years imprisonment at Level V on the remaining counts. Kirby then filed a second motion for postconviction relief raising thirteen issues, all of which were decided on the merits by the Superior Court.
Kirby v. State, Del. Supr., No. 344, 1997, Walsh, J., 1998 WL 184492 (Apr. 13, 1998) (ORDER).
(4) Kirby's first claim is that he should not have been declared an habitual offender because, contrary to what the sentencing judge believed, he did not have an opportunity for rehabilitation in the form of psychological evaluation and treatment following his conviction on burglary charges in Maryland in 1986. That claim is procedurally barred. Kirby filed two previous postconviction motions in 1997 and 1998. In the second motion, the issue of a lack of psychological treatment was raised and decided by the Superior Court.
Super. Ct. Crim. R. 61(i)(2) and (4).
(5) Even if Kirby's claim was not procedurally barred, it is without merit. Habitual offender status pursuant to 11 Del. C. § 4212(b) requires that there be three successive convictions with some chance of rehabilitation following sentencing on each. This Court has held that "some chance of rehabilitation" means only that some period of time must have elapsed between sentencing on each predicate conviction and the commission of the offense resulting in the later felony conviction. Kirby does not dispute that he was convicted of the requisite number of felonies. Nor does he dispute that some period of time elapsed between sentencing on each of his predicate convictions and the commission of the offense resulting in his later conviction. A lack of psychological treatment is not a bar to habitual offender status.
Buckingham v. State, Del. Supr., 482 A.2d 327, 330 (1984).
Hall v. State, Del. Supr., 473 A.2d 352, 357 (1984).
Eaddy v. State, Del. Supr., No. 440, 1995, Walsh, J., 1996 WL 313499 (May 30, 1996) (ORDER).
(6) There is no record support for Kirby's contention that the Superior Court erroneously believed that he had received rehabilitation in the form of psychological evaluation and treatment when it declared him to be an habitual offender, thus undermining the fundamental reliability, integrity and fairness of the process leading leading to his conviction. Kirby explained at his sentencing hearing that he had not received any psychological treatment. In its decision on Kirby's second postconviction motion, the Superior Court noted that it was aware of Kirby's background when it sentenced him.
(7) Kirby also contends that his first two postconviction motions should have been decided on their merits rather than denied for procedural reasons. There is no basis for this claim. The Superior Court declined to issue a decision on the first motion because Kirby's direct appeal to this Court was pending. Following completion of the appeal and the filing of Kirby's second motion, the Superior Court issued a written decision in which it decided each of the thirteen issues raised in the motion on the merits following a thorough review of the trial record.
State v. Kirby, Del. Super., Cr.A. Nos. 96-03-0151 et al., Lee, J. (May 20, 1998) (Letter Op.).
NOW, THEREFORE, IT IS ORDERED that the judgment of the Superior Court be, and the same hereby is, AFFIRMED.
BY THE COURT:
_________________________________ /s/ Maurice A. Hartnett, III, Justice