Opinion
No. 203, 1998.
February 11, 1999.
Court Below — Superior Court of the State of Delaware in and for New Castle County, Cr.A. Nos. IN93-02-0279-R1 thru IN93-022-0282-R1.
AFFIRMED.
Unpublished Opinion is below.
BRUCE M. MASON, Defendant Below, Appellant, v. STATE OF DELAWARE, Plaintiff Below, Appellee. No. 203, 1998. In the Supreme Court of the State of Delaware. Submitted: January 12, 1999. Decided: February 11, 1999.
Court Below — Superior Court of the State of Delaware in and for New Castle County, Cr.A. Nos. IN93-02-0279-R1 thru IN93-022-0282-R1.
Before HOLLAND, HARTNETT and BERGER, Justices.
ORDER
This 11th day of February, 1999, upon consideration of the defendant-appellant's, Bruce M. Mason ("Mason"), appeal from the denial of his second motion for postconviction relief, it appears to the Court that:
(1) Mason was convicted by a jury of three counts of unlawful sexual intercourse in the first degree pursuant to 11 Del. C. § 783A. Mason was sentenced to 48 years at Level V incarceration, suspended after 45 years for three years probation. This Court affirmed his convictions on direct appeal. Mason v. State, Del. Supr., 658 A.2d 994 (1995).
(2) Mason's attorney filed a motion for postconviction relief. That motion asserted four claims of ineffective assistance of trial counsel. The Superior Court denied the motion for postconviction relief. This Court affirmed that judgment. Mason v. State, Del. Supr., No. 203, 1996, 1997 WL 90780. (Feb. 25, 1997) (ORDER).
(3) On February 24, 1998, Mason filed a second motion for postconviction relief. In that pro se motion, Mason asserted 35 grounds for relief. The Superior Court denied the second motion for post conviction relief. State v. Mason, Del. Super., Cr.A. No. 93001218D1-R2. (April 28, 1998) (ORDER). Mason appeals from the Superior Court's decision on 19 of the 35 grounds, which is now before this Court. The remaining 16 claims are deemed abandoned and will not be addressed. Murphy v. State, Del. Supr., 632 A.2d 1150, 1152 (1993).
(4) Superior Court Criminal Rule 61 ("Rule 61") sets forth a procedure by which prisoners can challenge their convictions collaterally through a motion for postconviction relief. See Curran v. Wooley, Del. Super., 101 A.2d 303, 307, aff'd, Del. Supr., 104 A.2d 771 (1954). It is well-settled that the Superior Court and this Court must address the procedural requirements of Rule 61 before considering the merits of the motion. Younger v. State, Del. Supr., 580 A.2d 552, 554 (1990), citing Harris v. Reed, 489 U.S. 255, 265(1989). If a procedural bar exists, the merits of the postconviction claim must not be considered in order to protect the integrity of the procedural rules. Younger v. State, 580 A.2d at 554.
(5) The first procedural bar considered by the Superior Court was Rule 61(i)(4). That subsection provides, in part, that any ground for relief that was formerly adjudicated is thereafter barred from consideration unless reconsideration is warranted in the interest of justice. A defendant is not entitled to have a court reexamine an issue that has been previously adjudicated "simply because the claim is refined or restated." Skinner v. State, Del. Supr., 607 A.2d 1170, 1172 (1992), quoting Riley v. State, Del. Supr., 585 A.2d 719, 721 (1990).
(6) In this case, the Superior Court ruled that several of the grounds raised by Mason were resolved against him at other stages of the proceedings and were, therefore, procedurally barred by Rule 61(i)(4). On appeal, those matters, as enumerated by Mason, include: claim one (ineffective assistance of counsel for failure to object during the State's closing arguments); claim eight (insufficient evidence to support the verdict); claim fifteen (failure to present to the jury the circumstances surrounding the report of the incident); and claim nineteen (judicial error). The first claim was adjudicated when Mason's original motion for postconviction relief was denied. Claims eight, fifteen and nineteen were each addressed by the Superior Court either in the proceedings leading to conviction or in denying Mason's motion for a new trial. Mason did not raise these latter three claims in either his direct appeal or in his first motion for postconviction relief. The record supports the Superior Court's ruling, pursuant to Rule 61(i)(4), that Mason is procedurally barred from now raising any of the four previously adjudicated claims.
(7) The second procedural bar considered by the Superior Court was Rule 61(i)(2). Rule 61(i)(2) provides that any ground for relief that was not previously asserted in a postconviction proceeding is barred unless reconsideration is warranted in the interest of justice. Thus, a movant must include all claims in the first motion for postconviction relief. Any future motion is barred, subject to the interest of justice exception. Robinson v. State, Del. Supr., 562 A.2d 1184 (1989). In this case, Mason failed to raise 31 of his claims in his first motion for postconviction relief. The Superior Court properly determined that the grounds presented in Mason's pro se motion which were not previously raised in his attorney's first motion for postconviction relief were not within the exception, and could not be considered in a successive motion for postconviction relief, pursuant to Rule 61(i)(2).
(8) The third procedural prohibition applied by the Superior Court is found in Rule 61(i)(3), which bars any ground, other than ineffective assistance of counsel, that was not raised in the proceedings leading to the conviction, unless the movant shows both cause and prejudice. Flamer v. State, Del. Supr., 585 A.2d 736, 747 (1990); Younger v. State, Del. Supr., 580 A.2d 552, 555 (1990). Thus, Mason must show prejudice for failing to timely raise a claim at trial or on appeal which he now attacks collaterally. State v. Conyers, Del. Super., 413 A.2d 1264 (1979), aff'd Del. Supr., 422 A.2d 345 (1980). On appeal, those grounds include: claim four (discovery violation for failure to disclose witness's prior statement); claim six (discovery violation for failure to disclose witness's prior statement); claim eleven (discovery violation for failure to disclose witness's pending criminal charges and possible plea arrangement); claim thirteen (prosecutorial misconduct in questioning witness without anyone else present); claim fourteen (prosecutorial misconduct); and claim seventeen (trial court failed to record three sidebar conferences). The Superior Court did not find cause and/or prejudice. The record supports those findings. Accordingly, Mason has not made any showing of cause and prejudice that would avoid application of the procedural bar in Rule 61(i)(3).
(9) The remaining grounds alleged in Mason's pro se motion for postconviction relief are a variation of the ineffective assistance of trial counsel contention that was presented by his attorney in the first motion for postconviction relief. Mason has made no showing that his current allegations of ineffective assistance of counsel were unavailable to him at the time he filed his first motion for postconviction relief and thus should be considered in the interest of justice. Mason either knew, or should have known, his claims for the present appeal when he filed his first motion for postconviction relief. Mason's appeal is devoid of any supporting facts that would support the interest of justice exception. Consequently, those claims are also barred as repetitive. Super. Ct. Crim. R. 61(i)(2).
(10) Mason argued that because this was his first pro se motion he should not be governed by any of the procedural bars of Rule 61. The Superior Court dismissed that argument as a frivolous attempt to circumvent the procedural bar against repetitive motions. The Superior Court decided that Mason's motion as a whole was devoid of any supporting facts, as required by Rule 61(b)(2). We agree. The record supports the Superior Court's conclusion that Mason is procedurally barred from raising all of the claims in his second motion for postconviction relief. Super. Ct. Crim. R. 61.
NOW, THEREFORE, IT IS ORDERED that the judgment of the Superior Court be, and the same hereby is, AFFIRMED.
BY THE COURT:
/s/ Randy J. Holland, Justice