Opinion
Def. ID# 9504000994.
Date Submitted: November 2, 2000.
Date Filed: December 13, 2000.
Dear Mr. Jenkins:
Pending before the Court is the motion of George L. Jenkins ("defendant") for postconviction relief pursuant to Superior Court Criminal Rule 61 ("Rule 61"). This is the Court's decision denying the motion.
FACTS AND PROCEDURAL POSTURE
In April, 1995, defendant was arrested on charges of robbery in the first degree; assault in the second degree; possession of a deadly weapon during the commission of a felony; burglary in the first degree; and criminal mischief.
On August 14, 1995, defendant entered into a guilty plea to the charge of burglary in the first degree. The remaining charges were nolle prossed. On October 6, 1995, defendant was sentenced to Level 5 for a period of five years, giving credit for time served, and after serving three years at Level 5, the balance was suspended for one year at Supervision Level 3 followed by one year at Supervision Level 2. Defendant did not take an appeal from this sentence.
After his release from incarceration, defendant has been found in violation of his probation four times: on June 30, 1998; April 27, 1999; December 17, 1999; and July 21, 2000. In each case, his probation was revoked and his sentence was reimposed.
Defendant currently is serving the sentence imposed at the July 21, 2000 violation of probation hearing. The probation report charged that defendant violated the condition of probation requiring he not commit a crime during his probation. The facts showed that on July 13, 2000, defendant pled guilty in Court of Common Pleas to a charge of escape in the third degree; the offense occurred on July 8, 2000. Both the offense and conviction occurred during defendant's probation. At the July 21, 2000 violation of probation hearing, defendant admitted that he had violated this condition of probation. He also admitted he had tested positive for cocaine. He was adjudged guilty of violation of probation. The Court sentenced defendant to two years at Level 5, and upon successful completion of the Key Program, the balance is suspended for Level 4 Home Confinement/Work Release.
Defendant appealed therefrom. On appeal, he raised issues stemming from his arrest on the escape in the third degree charge as well as issues regarding the sentence the Court of Common Pleas imposed on his conviction on that charge. The Supreme Court ruled it did not have jurisdiction over those claims. Jenkins v. State, Del. Supr., No. 363, 2000, Berger, J. (October 12, 2000). Defendant also argued that the sentence for violation of probation and the sentence for the escape in the third degree conviction constituted multiple punishments. The Supreme Court ruled this contention to be without merit. Id. The Court affirmed the decision of the Superior Court. Id.
On October 18, 2000, defendant filed the pending Rule 61 motion. He advances three grounds for relief.
The first ground he advances is that he was not given Miranda warnings when he was arrested.
Miranda v. Arizona, 384 U.S. 436 (1966).
In the second ground, he asserts as follows:
I have been V.O.P. on the same case nummber [sic] sicne [sic] 6-30-98 they keep suspend [sic] my time for program that I complet [sic] my orig. offense was up 10-6-00.
Defendant labels the third ground as "clarification", and he alleges:
On 12-17-99 I was since [sic] to 6 mo. W/R follow [sic] 6 mo of level 4 aftercare now I got a clarification on 2-18-200 [sic] saying that I was put on level 4 aftercare
DISCUSSION
1) Non-Rule 61 claimsThe first and third grounds are not matters subject to a postconviction relief motion because they do not provide either a factual or legal basis for a collateral attack upon the convictions. Rule 61(a).
In Rule 61(a), it is provided in pertinent part:
Scope of rule. (i) 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 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.
(2) Exclusiveness of remedy. The remedy afforded by this rule may not be sought by a petition for a writ of habeas corpus or in any manner other than as provided herein.
The first ground, that defendant was not given Miranda warnings when he was arrested, pertains to his escape charge. Defendant cannot attack the arrest on the escape charge in this proceeding.
The third ground concerns a sentence which no longer exists. On December 17, 1999, defendant was sentenced as follows:
Effective December 17, 1999, the defendant is placed in the custody of the Department of Correction at Supervision Level 5 for a period of 2 years, including credit for any time previously served.
This sentence is suspended for 6 months at Level 4 Work Release, to be followed by 6 months Level 4 Aftercare and 1 year probation at Level 3. Defendant shall be held at Level 5 until space is available at Level 4 Work Release.
In an order dated February 18, 2000, the Court provided:
WHEREAS, on December 17, 1999, this Court sentenced the above-named defendant and ordered, among other things, that he be [sic] serve 6 months Level 4 Aftercare;
WHEREAS, it should be noted that defendant, on April 27, 1999, was sentenced to and completed Level 4 Crest South Outreach;
NOW THEREFORE, for purposes of clarification, the Sentencing Order dated December 17, 1999, placing defendant on Level 4 Aftercare, following the sentence at Level 4 Work Release, is appropriate as he is a recent Crest graduate.
On June 21, 2000, defendant was resentenced to two years at Level 5, and upon successful completion of the Key Program, the balance is suspended for Level 4 Home Confinement/Work Release. Thus, the December 17, 1999 sentence and February 18, 2000 clarification are irrelevant to defendant's current sentence. Consequently, the third ground defendant asserts is not something upon which he can obtain postconviction relief.
In conclusion, the Court dismisses grounds one and three as legally frivolous.
2) Rule 61 Claim
I now turn to the second ground which defendant asserts. As I read his argument, he contends that the two year sentence which was imposed on June 20, 1998 has expired; the Court could not resentence him.
The Court first must determine if there are any procedural bars to the claim in the postconviction relief motion, and if there are, the Court must apply them. Younger v. State, Del. Supr., 580 A.2d 552, 554 (1990).
This motion is not time-barred since it was brought within three years from the date when the conviction became final. Rule 61(i)(1). See Jackson v. State, Del. Supr., 654 A.2d 829, 833 (1995). In addition, since this is defendant's first motion for postconviction relief, the bar of Rule 61(i)(2) does not apply.
In Rule 61(i)(2), it is provided:
(i) Bars to relief. * * *
(2) Repetitive motion. Any ground for relief that was not asserted in a prior postconviction proceeding, as required by subdivision (b)(2) of this rule, is thereafter barred, unless consideration of the claim is warranted in the interest of justice.
However, the procedural bar of Rule 61(i)(3) applies to this claim. Therein, it is provided:
Any ground for relief that was not asserted in the proceedings leading to the judgment of conviction, as required by the rules of this court, is thereafter barred, unless the movant shows:
(A) Cause for relief from the procedural default and
(B) Prejudice from violation of the movant's rights.
Even if the Court did not apply the procedural bar and instead, considered the matter on the merits, the claim would fail. Defendant has violated his probation four times since he originally was sentenced. The unexpired portion of his prison term was reimposed each time. 11 Del. C. § 4334 (c); Brown v. State, Del. Supr., 741 A.2d 16 (1999); Ingram v. State, Del. Supr., 567 A.2d 868, 869 (1989). The sentence commenced to run upon each reimposition. Defendant's sentence has not expired because he continues to violate the sentence and receive reimpositions of that sentence. Consequently, this claim is meritless.
CONCLUSION
For the foregoing reasons, defendant's motion for postconviction relief is denied.
IT IS SO ORDERED.
Very truly yours,
Richard F. Stokes
cc: Prothonotary's Office Department of Justice Public Defender's Office