Opinion
ID No. 9708021684 IK97-09-0076-R1 through IK97-09-0083-R1
Submitted: April 3, 2002
Decided: April 10, 2002
ORDER
Upon consideration of the defendant's Motion for Postconviction Relief, the Commissioner's Report and Recommendation and the record in this case, it appears that:
(1) The defendant, Michael A. Benson ("Benson") was found guilty by a jury on August 18, 1998 of three counts of Delivery of Cocaine, 16 Del. C. § 4751; two counts of Possession with Intent to Deliver Cocaine, 16 Del. C. § 4751; one count of Maintaining a Dwelling for the Keeping of Controlled Substances, 16 Del. C. § 4755(a)(5), one count of Trafficking Cocaine, 16 Del. C. § 4753A(a)(2)a; and one count of Possession of Drug Paraphernalia, 16 Del. C. § 4771. On December 4, 1998 the Court sentenced Benson to 78 years incarceration of which 75 years at Level V were mandatory.
A timely notice of appeal was filed. Benson's counsel filed a brief and motion to withdraw pursuant to Supreme Court Rule 26(c). In the motion to State v. Michael A. Benson ID No. 9708021684 April 10, 2002 withdraw, appellate counsel represented that he conducted a conscientious review of the record and concluded that no meritorious issues existed. By letter, counsel informed Benson of the provisions of Rule 26(c) and attached a copy of the motion to withdraw and accompanying brief. Benson was informed of his right to supplement his attorney's presentation but raised no additional issues. The Delaware Supreme Court on appeal affirmed each of Benson's convictions and sentences. Next, Benson filed a motion for postconviction relief pursuant to Superior Court Criminal Rule 61. He has raised four grounds for relief including ineffective assistance of counsel.
Benson v. State, Del. Supr., No. 521, 1998, Hartnett, J. (June 29, 1999) (ORDER).
(2) The Court referred this motion to Superior Court Commissioner Andrea Maybee Freud pursuant to 10 Del. C. § 512(b) and Superior Court Criminal Rule 62 for proposed findings of facts and conclusions of law. The Commissioner has filed a Report and Recommendation concluding that the motion for postconviction relief should be dismissed as procedurally barred by Rule 61(i)(3) for failure to prove cause and prejudice.
(3) No objections to the Report have been filed.
(4) Benson has not provided a basis for postconviction relief under Rule 61.
Under present law the Department of Correction may apply to the Court for a reduction of sentence under 11 Del. C. § 4217. In the alternative, Benson may seek clemency through the Board of Pardons process.
NOW THEREFORE, after careful and de novo review of the record in this action, and for the reasons stated in the Commissioner's Report and Recommendation dated March 19, 2002,
IT IS ORDERED that:
(A) The Commissioner's Report and Recommendation is adopted by the Court;
(B) The defendant's Motion for Postconviction Relief is DISMISSED.