Opinion
ID# 84003873DI. Cr.A. Nos. VN84-06-0594, VN84-07-1944.
Date Submitted: October 6, 1999.
Date Decided: January 12, 2000. Motion Denied: February 8, 2000.
Upon Defendant's Motion for Postconviction Relief: DENIED .
ORDER
This 12th day of January, 2000, upon consideration of the defendant's Motion for Postconviction Relief it appears to this Court that:
1. On March 12, 1985, the movant, Dean Cornelius Black ("Defendant"), was found guilty on two charges of Attempted Rape First Degree in IN84-06-0594 and IN84-07-1944. As to 0594, Defendant was sentenced to be imprisoned for five (5) years, and as to 1944, Defendant was sentenced to be imprisoned for 20 years served consecutive to the sentence imposed in 0594, that is beginning July 11, 1991 and ending July 10, 2011. After serving ten (10) years, the remainder of the sentence was suspended and Defendant was placed on probation. The Supreme Court affirmed the conviction on direct appeal. Defendant served his prison term and was placed on parole. In 1997, Defendant violated the terms of his probation and parole by changing his residence and by not properly notifying his supervising probation officer.
Black v. State, Del. Supr., No. 173, 1985, Walsh, J. (June 23, 1986) (ORDER).
In the violation hearing held on June 10, 1997, this Court found Defendant to be in violation of his probation. Defendant was sentenced as to VN84-07-1944-01 to ten (10) years in prison, suspended after serving nine and one half (9 1/2) years for Level IV work release. The June 10, 1997 sentencing order incorrectly stated that Defendant's violation of probation was as to VN84-06-0594, but Defendant had served the sentence in 0594 and violated probation as to 1944.
3. Defendant did not appeal the revocation of his probation and sentence to the Delaware Supreme Court, but he has filed numerous motions with this Court, including a motion to correct an illegal sentence, a motion for modification of sentence, and a motion for a new trial. These motions were subsequently denied.
On April 1, 1999, Defendant filed a motion for postconviction relief from both the conviction in IN84-06-0594 and from the June 10, 1997 violation of probation conviction in VN84-07-1944. This Court found that because the 1985 conviction was affirmed by the Supreme Court more than three years ago, Defendant's claims as to 0594 were procedurally barred. The Court denied Defendant's claims as to 1944, the violation of probation conviction, as conclusory and unsubstantiated.
Pursuant to Delaware Superior Court Civil Rule 61(i)(1), a motion for postconviction relief may not be filed more than three years after the judgment of conviction is final.
Black v. State, Del. Super., C.A. Nos. IN84-06-0594, IN84-07-1944, Gebelein, J. (April 12, 1999).
Defendant filed another motion for modification of sentence on May 19, 1999. This Court denied that motion on June 1, 1999 and the Supreme Court affirmed.
Black v. State, Del. Supr., No. 242, 1999, Holland, R. (November 2, 1999) (ORDER).
4. Defendant now files his second motion for postconviction relief from his violation of probation conviction. Defendant alleges, as his grounds for relief, the following claims: ineffective assistance of counsel; misconduct by probation officer; violation of the double jeopardy clause; and conflict of interest.
5. Under Delaware law, the Court must first determine whether the defendant has met the procedural requirements of Superior Court Criminal Rule 61(i) before it may consider the merits of the postconviction relief claim. Under Rule 61(i), claims for relief must be brought within three (3) years of the conviction becoming final. Any ground for relief not asserted in a prior postconviction motion is thereafter barred unless consideration of the claim is necessary in the interest of justice. Similarly, grounds for relief not asserted in the proceedings leading to the judgment of conviction are thereafter barred, unless the movant demonstrates: (1) cause for the procedural default, and (2) prejudice from the violation of the movant's rights. Additionally, any ground fro relief that was formerly adjudicated, whether in a proceeding leading to the judgment of conviction, in an appeal, or in a postconviction proceeding, is thereafter barred.
Bailey v. State, Del. Supr., 588 A.2d 1121, 1127 (1991); Younger v. State, Del. Supr., 580 A.2d 552, 554 (1990); (citing Harris v. Reed, 489 U.S. 225 [ 489 U.S. 255] (1989)).
Del. Super. Ct. Crim. R. 61(i)(1).
Del. Super. Ct. Crim. R. 61(i)(2).
Del. Super. Ct. Crim. R. 61(i)(3).
Del. Super. Ct. Crim. R. 61(i)(4).
6. Here, because the original convictions became final more than three years ago, the procedural bar of Rule 61(i)(1) is applicable as to the original convictions, and only the June 10, 1997 violation of probation conviction may still be attacked via a motion for postconviction relief. Defendant, however, previously filed a motion for postconviction relief as to the violation of probation conviction on April 1, 1999. Therefore, the procedural bar of Rule 61(i)(2) is applicable as to any ground for relief not asserted by Defendant in the first motion for postconviction relief, and any ground for relief that was asserted in that motion is barred by Rule 61(i)(4).
Additionally, each of Defendant's claims could have been raised on direct appeal to the Delaware Supreme Court. Pursuant to Rule 61(i)(3), the grounds for relief currently being raised by Defendant are barred unless Defendant demonstrates cause for his failure to appeal these claims and prejudice. In Jones, the Supreme Court ruled that the failure of a defendant to challenge his probation revocation by direct appeal to the Supreme Court, thereafter precluded any claim which could have been raised in such an appeal, absent a demonstration of cause and prejudice. Defendant has made no attempt to show cause for his procedural default or to demonstrate prejudice. Thus, under Rule 61(i)(3) it appears that Defendant's claims are procedurally barred as Defendant did not bring these claims on direct appeal to the Delaware Supreme Court.
See Smith v. State, Del. Supr., No. 21, 1993, Veasey, C.J. (July 9, 1993) (ORDER); see also Jones v. State, Del. Supr., No. 285, 1989, Moore, J. (July 31, 1989) (ORDER) (citing Johnson v. State, Del. Supr., 460 A.2d 539 (1983)).
Jones, Order at 2-3.
7. Defendant's motion for postconviction relief must be denied as it is procedurally barred pursuant to Rule 61(i)(1), (2), (3), and (4). To protect the integrity of the procedural rules, the Court will not consider the merits of the postconviction claims where a procedural bar exists.
State v. Gattis, Del. Super., Cr. A. No. IN90-05-1017, Barron, J. (Dec. 28, 1995) (citing Younger v. State, 580 A.2d At 554; Saunders v. State, Del. Supr., No. 185, 1994, Walsh, J. (Jan. 13, 1995) (ORDER). Hicks v. State, Del. Supr., No. 417, 1991, Walsh. J (May 5, 1992) (ORDER)).
Based upon the foregoing, Defendant's Motion for Postconviction Relief is DENIED.
IT IS SO ORDERED.