Opinion
Def. ID# 9605020352
Date Submitted: May 29, 2002
June 28, 2002
John W. Petsinger, Philadelphia, PA.
Christine E. Tunnell, Esquire, Department of Justice, Georgetown, DE.
Dear Mr. Petsinger and Ms. Tunnell:
Pending before the Court is an appeal which John W. Petsinger ("appellant") has filed from a decision of the Court of Common Pleas dismissing appellant's motion for postconviction relief filed pursuant to Court of Common Pleas Criminal Rule 61. Appellant has filed a motion for change of venue without providing any valid basis for such a change. The motion for change of venue is denied. This is the Court's decision affirming the decision of the court below.
Defendant's submissions contain offensive language. See also Petsinger v. Doyle, Del. Super., C.A. No. 01A-12-005, Silverman, J. (May 30, 2002). Rather than strike the submissions, the Court ignores the offensive language. Defendant's appeal is legally frivolous; it is easier to ignore the offensive language and address the appeal itself rather than strike the submissions and require him to refile appropriate submissions.
FACTS
On April 15, 1999, appellant was found guilty of the charge of driving under the influence in the Court of Common Pleas in and for Sussex County. On that date, the Court of Common Pleas sentenced appellant to 30 days at Level 5, suspended for one year of probation at Level 1.On March 20, 2000, appellant was discharged from probation as unimproved.
On August 6, 2001, appellant filed a motion for relief from judgment pursuant to Court of Common Pleas Civil Rule 60. The Court of Common Pleas treated this inappropriate filing as a motion for postconviction relief pursuant to Court of Common Pleas Criminal Rule 61 ("Rule 61"). Appellant argued the initial stop leading to his arrest for driving under the influence was invalid because it was not physically possible for him to have reached the speed the arresting officer testified he was going. On September 19, 2001, the Court of Common Pleas denied the Rule 61 motion on the grounds it was time-barred and no exceptions to that time bar existed.
On appeal, appellant advances an additional ground for postconviction relief: his counsel was ineffective. However, since he did not first assert that claim to the court below, he cannot pursue it on appeal.
STANDARD OF REVIEW
As this Court recently explained in Bailey v. State, Del. Super., Def. ID# 0010007932, Goldstein, J. (February 1, 2002) at 2-3:
The standard of review by this Court upon appeal from a decision by the Court of Common Pleas is the same standard applied by the Supreme Court when reviewing an appeal from a decision of this Court. First, this Court must review the trial court's rulings for errors in formulating or applying legal standards. Second, this Court must review the factual findings of the trial court to determine whether there was sufficient evidence to support those findings and whether those findings were the result of a logical and orderly deductive process. Only when the findings below are clearly wrong is the Court free to make contradictory findings of fact. [Footnotes and citations omitted.]
In this case, the Court affirms the ultimate decision of the court below but it does so on another ground.
In Rule 61, it is provided in pertinent part:
(a) Scope of rule. (1) Nature of proceeding. This rule governs the procedure on an application by a person in custody or subject to future custody under a sentence of this Court seeking to set aside a judgment of conviction on the ground that the Court lacked jurisdiction to enter the judgment or on any other ground that is a sufficient factual and legal basis for a collateral attack upon a criminal conviction. A proceeding under this rule shall be known as a postconviction proceeding.
* * *
(i) Bars to relief. (1) Time limitation. A motion for postconviction relief may not be filed more than one year after the judgment of conviction is final or, if it asserts a retroactively applicable right that is newly recognized after the judgment of conviction is final, more than one year after the right is first recognized by the Supreme Court of Delaware or by the United States Supreme Court.
(2) Repetitive motion. * * *
(3) Procedural default. * * *
(4) Former adjudication. * * *
(5) Bars inapplicable. The bars to relief in paragraphs (1), (2), and (3) of this subdivision shall not apply to a claim that the Court lacked jurisdiction or to a colorable claim that there was a miscarriage of justice because of a constitutional violation that undermined the fundamental legality, reliability, integrity or fairness of the proceedings leading to the judgment of conviction. [Emphasis added.]
In this case, appellant is not in custody or subject to future custody. He has been discharged from probation. The Supreme Court has instructed that in such a case, the appellant has no standing to bring a motion pursuant to Rule 61. Guinn v. State, Del. Supr., No. 549, 1992, Walsh, J. (April 21, 1993) at 2. The miscarriage of justice exception contained in Rule 61(i)(5) applies only to the time, repetitive motion, and procedural default bars; it does not apply to the standing bar. State v. Beles, Del. Super. Cr. A. No. 96-06-0468, Graves, J. (March 13, 1997). Based on the foregoing, I conclude Appellee had no standing to bring the Rule 61 motion. See id. The dismissal of the motion was appropriate.
Court of Common Pleas Criminal Rule 61, except for the one year time limitation, is identical to Superior Court Criminal Rule 61. Thus, I employ a case interpreting Superior Court Criminal Rule 61 for aide in deciding the issue here.
Appellant has no standing to bring a Rule 61 claim on the ground of ineffective assistance of counsel. Rule 61 is not available to him for any postconviction relief.
CONCLUSION
For the foregoing reasons, the Court affirms the decision of the Court of Common Pleas dismissing appellant's motion for postconviction relief.
IT IS SO ORDERED.