Opinion
Def. ID# 9708004381
Date Submitted: January 14, 2002
March 21, 2002
George J. Dombrosky Delaware Correctional Center P.O. Box 500 Georgetown, DE 19947.
Dear Mr. Dombrosky:
Defendant George J. Dombrosky ("defendant") has filed his second motion for postconviction relief pursuant to Superior Court Criminal Rule 61 ("Rule 61"). The motion is denied because it is procedurally barred.
In State v. Dombrosky, Del. Super., Def. ID# 9708004381, Lee, J. (August 10, 1999), Judge Lee addressed defendant's first motion for postconviction relief and thoroughly set forth the procedural history of this case. I incorporate that decision herein by reference.
Defendant pled guilty to murder in the second degree and unlawful sexual intercourse in the first degree, and was sentenced thereon on September 4, 1998. He did not file an appeal therefrom. On January 4, 1999, defendant filed his first Rule 61 motion.
In his first Rule 61 motion, defendant advanced several arguments. He claimed ineffective assistance of counsel. In support thereof, he argued:
1) Defendant was coerced into entering the plea.
2) Counsel promised him the sentence would be twenty-five years.
3) Counsel lied to him or misrepresented to him what were the terms of the plea.
4) Counsel misrepresented who would be testifying and what evidence would be introduced if he went to trial.
5) Counsel failed to negotiate a plea pursuant to Super. Ct. Crim. Rule 11(e)(1).
6) Counsel did not review the PSI report; that report portrayed him as a career criminal and information in it was untrue, misleading, and wrong; and the Court imposed a greater sentence in light of this misinformation.
7) Counsel failed to inform defendant he could appeal his sentence and failed to appeal his sentence.
8) Counsel failed to investigate and develop mitigating evidence that would have supported his case during sentencing.
The Court denied his Rule 61 motion on the ineffective assistance of counsel claims. State v. Dombrosky, supra. It also denied other claims defendant raised as being procedurally barred or having been waived. Id. The Supreme Court dismissed the appeal of this decision as untimely. Dombrosky v. State, 741 A.2d 1026 (Del. 1999).
On January 3, 2002, defendant filed his second Rule 61 motion. He seeks to withdraw his guilty plea on the ground that trial counsel was ineffective. In support of that claim, he argues that trial counsel failed to investigate and develop mitigating evidence in connection with his sentencing and with the rape charge and trial counsel was influenced by the lie detector test which trial counsel requested defendant to take.
This motion is time-barred pursuant to Superior Court Criminal Rule 61(i)(1) since it was not brought within three years after the judgment of conviction was final. There is no exception applicable which would overcome the time bar. Defendant has not shown or even asserted that the Court lacked jurisdiction or that there exists 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. Super. Ct. Crim. R. 61(i)(5).
The motion also is procedurally barred because defendant failed to assert the current contentions in his first Rule 61 motion. Defendant has not established that any exceptions to the bar exist; he has failed to assert or show that consideration of the claims is warranted in the interest of justice, that the Court lacked jurisdiction, or that there exists 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. Super. Ct. Crim. R. 61(i)(2) and (5).
For the foregoing reasons, the Rule 61 motion is denied.
IT IS SO ORDERED.
Very truly yours,
Richard F. Stokes