Opinion
I.D. No. 0005025385
Submitted: February 1, 2001
Decided: March 12, 2001
UPON DEFENDANT'S MOTION FOR POSTCONVICTION RELIEF. SUMMARILY DISMISSED.
ORDER
This 12th day of March, 2001, upon consideration of the Defendant's Motion for Postconviction Relief pursuant to Superior Court Criminal Rule 61 and the record in this case, it appears that:
(1) On January 30, 2001, Defendant, Maurice X. Barrett, pleaded guilty to Burglary Second Degree, Misdemeanor Theft, and four counts of Non-compliance with Conditions of Release. On the same date, the Court sentenced Defendant for Burglary Second Degree to four years Level 5 incarceration, suspended after three months for six months at Level 4 Plummer Center, followed by six months at Level 4 home confinement. Defendant was sentenced to probation on the remaining counts.
(2) Defendant has now filed a Motion for Postconviction Relief pursuant to Superior Court Criminal Rule 61. In support of his motion, Defendant lists three grounds for relief First, Defendant claims that he was not given credit in his sentence for time served prior to his guilty plea. Defendant also states as a ground for relief, "There is a no contact order that will keep me from leaving the state." Defendant states that he would like to be allowed to leave the state upon his release from Level 5 incarceration.
(3) The Court finds that Defendant's first two grounds for relief do not fall within the scope of Rule 61, which governs an application, "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. . . ." Defendant's "grounds for relief" do not constitute a collateral attack upon his conviction; rather, they seem to be a request for a modification of the terms of his sentence.
(4) Defendant's final ground for relief alleges that some of the charges in Defendant's lengthy indictment must have been fabricated. Defendant also states that he believes the victim, with whom he has been ordered to have no contact, will use the no contact order to "reconstruct this whole ordeal again until I am incarcerated for a very long time." Defendant again states that he would like to relocate upon his release from Level 5 incarceration. Again, it appears that Defendant's arguments are a request for a modification of the terms of his sentence.
(5) To the extent that Defendant is arguing that the indictment against him was defective in some way, the Court notes that Defendant pleaded guilty to the charges against him. As a result, Defendant gave up the right to present evidence in his defense and to hear and question witnesses against him or to challenge the indictment. State v. Smith, Del. Super., Cr. A. No. P89-11-1474, Del Pesco, J. (Feb. 7, 1991) (citing Sheppard v. State, Del. Supr., 367 A.2d 992, 994 (1976)). Therefore, the Court finds that Defendant's final ground in support of his motion clearly is without merit.
Therefore, because the Court finds that it is plain from the Motion for Postconviction Relief and the record in this case that Defendant is not entitled to relief, the motion is hereby SUMMARILY DISMISSED.
IT IS SO ORDERED.
Carl Goldstein, Judge oc: Prothonotary cc: Maurice X. Barrett Kevin O'Connell, Esq.