Opinion
Def. ID# 9910007159.
Date Submitted: December 7, 2000.
Date Filed: December 19, 2000.
Dear Mr. Smith:
Defendant Martin H. Smith ("defendant" has filed in this action his second motion for post conviction relief pursuant to Superior Court Criminal Rule 61 ("Rule 61"). This is my decision denying that motion. However, before I discuss the pending motion, I address defendant's first Rule 61 motion.
The Court responded to defendant's first Rule 61 motion by letter dated October 11, 2000. The letter as well as an enclosure were mailed to defendant at Sussex Correctional Institution, which was the address on the envelope containing defendant's motion. The mailing was returned with the indication "INMATE UNKNOWN". Defendant's most recent filing shows that his address now is Delaware Correctional Center. Apparently defendant was transferred to Delaware Correctional Center within the time period from the filing of his first Rule 61 motion and the Court's decision thereon. Because defendant has not received the Court's decision on the first motion, I have enclosed copies of the October 11, 2000 letter and the enclosure sent with that letter.
I now turn to defendant's pending Rule 61 motion.
FACTS
On November 7, 1999, defendant was indicted on the following charges: possession with intent to deliver cocaine; conspiracy in the second degree; possession of drug paraphernalia; and resisting arrest.
On February 25, 2000, defendant entered into a plea agreement. The agreement provided for defendant to plead to charges of possession with intent to deliver cocaine and conspiracy in the second degree in exchange for the State of Delaware ("the State") nolle prossing the remaining charges. Defendant pled. The agreement also provided for a presentence investigation to take place before the Court imposed sentence. It was the understanding of the defense, the State and the Court that defendant was not subject to mandatory jail time.
The Presentence Office began its investigation and learned that defendant had a conviction in Worcester County, Maryland for distribution of cocaine. The disposition date on this charge was February 12, 1992.
This conviction in Maryland meant that defendant would have to serve mandatory time on the drug charge to which he pled guilty. 16 Del. C., § 4763. Consequently, the Court granted defendant's subsequent motion to withdraw the plea.
The case was put back on the trial calendar. Defendant was facing substantial mandatory time pursuant to 16 Del. C. § 4763. On June 22, 2000, defendant entered into another plea agreement. He pled guilty to possession of cocaine; conspiracy in the second degree; possession of drug paraphernalia; and resisting arrest. Pursuant to that plea agreement, he was sentenced as follows. On the possession of cocaine conviction, he was sentenced to three years at Level 5 pursuant to 11 Del. C. § 4204 (k). As to the conspiracy in the second degree conviction, he was sentenced to two years at Level 5 pursuant to 11 Del. C. § 4204 (k). As to the possession of drug paraphernalia conviction, he was sentenced to one year at Level 5 pursuant to 11 Del. C. § 4204 (k). As to the resisting arrest conviction, defendant was sentenced to one year at Level 5 pursuant to 11 Del. C. § 4204 (k). Following incarceration, defendant will serve six months at Level 2.
Defendant did not appeal.
On July 25, 2000, defendant filed a motion for sentence reduction and resentencing. By letter dated August 1, 2000, the Court explained that defendant had entered into the plea agreement and he could not renegotiate that plea agreement with the Court. It denied the motion.
On August 31, 2000, defendant filed a motion for postconviction relief. In that motion, he argued that the delivery charge in Maryland was dropped and he had no prior distribution of cocaine conviction in Maryland. Consequently, he requested that he be allowed to enter into the first plea offered.
In a letter filed September 13, 2000, defendant asked for a sentence reduction.
By letter dated October 11, 2000, the Court denied the sentence reduction. It also denied the Rule 61 motion, explaining that defendant had obtained a prior drug conviction.
On December 7, 2000, defendant filed his second motion for postconviction relief. Again, he argues that his sentence is erroneous because he did not have an underlying drug conviction which required a sentencing enhancement.
DISCUSSION
Defendant seeks to withdraw his guilty plea and I examine it pursuant to Rule 61.
The Court does not examine the merits of a Rule 61 motion unless the motion meets the procedural requisites of the rule. This motion is procedurally barred because of procedural default and former adjudication. Rule 61(i)(3) and (4). Defendant has failed to show these bars are inapplicable because reconsideration of the claim is warranted in the interest of justice, because the court lacked jurisdiction and/or because he has 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. Defendant's motion is denied due to the procedural oars.
The pertinent procedural provisions of Rule 61 are:
(i) Bars to relief. * * *
(3) Procedural default. 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.
(4) Former adjudication. Any ground for relief that was formerly adjudicated, whether in the proceedings leading to the judgment of conviction, in an appeal, in a postconviction proceeding, or in a federal habeas corpus proceeding, is thereafter barred, unless reconsideration of the claim is warranted in the interest of justice.
(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.
Even if I considered defendant's contention on the merits, it would fail. Defendant's record shows that he has a conviction for distribution of cocaine. Consequently, there is no basis for him to argue that sentencing enhancement provisions did not apply. Because defendant was facing a substantial period of incarceration, he voluntarily entered into the plea agreement. There is no basis for him to withdraw that plea.
For the foregoing reasons, defendant's motion for postconviction relief is denied.
IT IS SO ORDERED.
Richard F. Stokes
Enclosures cc: Prothonotary's Office Karl Haller, Esquire Martin J. Cosgrove, Esquire