Opinion
ID. No. 9610016638
Submitted: December 2, 2002
Decided: February 26, 2003
IK96-11-0378 and IK96-11-0381 thru 0382
Upon Consideration of Defendant's Motion For Postconviction Relief Pursuant to Superior Court Criminal Rule 61 DENIED
Robert J. O'Neill, Jr. Esq., Dover, Delaware. Attorney for State.
Deon D. Akins, Pro se.
ORDER
Upon consideration of defendant's Motion for Postconviction Relief, the Commissioner's Report and Recommendation, and the record in this case, it appears:
1. The defendant pled guilty to Unlawful Sexual Intercourse in the First Degree, 11 Del. C. § 775; Burglary in the First Degree, 11 Del. C. § 826 and Robbery in the First Degree, 11 Del. C. § 832 on June 23, 1997.
2. The defendant failed to appeal his conviction or sentence to the Delaware Supreme Court. The pending motion for postconviction relief was filed on October 10, 2002.
3. The Motion for Postconviction Relief was referred to the Court Commissioner Andrea M. Freud for proposed findings and recommendation pursuant to 10 Del. C. § 512(b) and Superior Court Criminal Rule 61.
4. The Commissioner determined that the defendant filed his motion more than three years after being sentencing. Therefore, the motion is procedurally barred under Rule 61(i)(1) unless the defendant asserted a retroactively applicable right that was newly recognized after the judgment of conviction.
5. A copy of the Commissioner's report dated November 4, 2002 is attached hereto. The defendant failed to file an appeal from the Commissioner's Report and Recommendation.
NOW, THEREFORE, IT IS ORDERED that:
a. Having conducted a de novo review of the proceedings I adopt the well-reasoned Commissioner's Report and Recommendation;
b. The defendant's Motion for Postconviction Relief is denied.
COMMISSIONER'S REPORT AND RECOMMENDATION
Upon Defendant's Motion For Postconviction Relief
Pursuant to Superior Court Criminal Rule 61 FREUD, Commissioner November 4, 2002
On June 23, 1997, the defendant, Deon D. Akins, ("Akins") plead guilty pursuant to a Rule 11(e)(1)(c) plea agreement to one count of Unlawful Sexual Intercourse in the First Degree, 11 Del. C. § 775; one count of Burglary in the First Degree, 11 Del. C. § 826; and one count of Robbery in the First Degree, 11 Del. C. § 832. Akins did not appeal his conviction to the State Supreme Court.
On October 10, 2002, Akins moved for postconviction relief pursuant to Superior Court Rule 61.
Under Delaware law, the Court must first determine whether Akins has met the strict procedural requirements of Superior Court Criminal Rule 61(i) before it may consider the merits of the postconviction relief claims. The pending motion was filed more than three years after his sentencing, and the time to file a direct appeal, and is therefore procedurally barred under Rule 61(i)(1) unless he asserts a retroactively applicable right that is newly recognized after the judgement of conviction. Akins has not alleged such a right.
Bailey v. State, Del. Supr., 588 A.2d 1 121, 1127 (1991); Younger v. State, Del. Supr., 580 A.2d 552, 554 (1990) (citing, Harris v. Reed, 489 U.S. 255 (1989)).
Akins' motion is procedurally barred by Superior Court Criminal Rule 61(i)(1). I recommend that Akins' postconviction motion be denied.