Opinion
I.D. No. 0308021468.
April 30, 2008.
ORDER
And now to wit, this 30th day of April, 2008, IT IS HEREBY ORDERED as follows:
Defendant Brokenbrough was convicted by a jury of first-degree assault, third-degree assault, first-degree attempted robbery, and third-degree conspiracy on April 29, 2005. The Delaware Supreme Court affirmed his conviction on April 11, 2006.
Brokenbrough was sentenced to 25 years at level V for first-degree assault, 25 years at level V for attempted robbery, one year at level V for third-degree assault and one year at level V suspended immediately for one year at level III for the third-degree conspiracy conviction.
Brokenbrough v. State, 897 A.2d 767 (Del. 2006).
On April 5, 2007, Brokenbrough filed a motion for postconviction relief and on May 24, 2007 he filed a motion to amend. On October 16, 2007, after defense counsel and prosecutors responded to his amended postconviction motion, Brokenbrough filed another motion to amend, a motion for production of medical records and a motion for an extension of time. On October 30, 2007, this Court denied his postconviction motion.
Def. Mot. for Postconviction Relief, Docket Item ("D.I.") 69; Def. Mot. to Amend, D.I. 71.
Motions, D.I. 82, 83, 84.
State v. Brokenbrough, 2007 WL 3287938 (Del.Super. 2007).
On October 31, 2007, Brokenbrough filed a reply to the State's response in opposition to his October 16, 2007 motions and on November 13, 2007 he filed a motion for reargument. On November 21, 2007, before this Court ruled on his pending motions, Brokenbrough appealed this Court's denial of his postconviction motion to the Delaware Supreme Court. In light of his appeal, this Court stayed decision on his pending motions.
D.I., 87, 88.
See Letter from Delaware Supreme Court to Sharon Agnew, D.I. 90.
Super. Ct. Crim. R. 61(d)(2) ("If any part of the record of prior proceedings in the case has been removed in connection with an appeal or federal habeas corpus proceeding, the judge may stay proceedings [in the Superior Court] until it has been returned.").
On December 17, 2007 Brokenbrough filed a motion requesting that the Delaware Supreme Court remand his case to this Court so that it could rule on his pending motions. On January 9, 2007, the Delaware Supreme Court remanded Brokenbrough's case to allow this Court to consider the timeliness of his motion for reargument and, within its discretion, to consider his other pending motions.
Mandate, D.I. 92.
For the reasons set forth below, this Court lacks jurisdiction to decide the merits of Brokenbrough's motion for reargument, and his three ancillary motions are DENIED.
Motion for Reargument
Brokenbrough's motion for reargument is untimely and therefore this Court does not have jurisdiction to consider the merits. A motion for reargument must be filed and served within five days after the Court's opinion or decision is filed. The five-day rule is jurisdictional and the Court does not have discretion to extend the deadline. This Court's Opinion denying postconviction relief was issued on October 30, 2007. Brokenbrough filed his motion for reargument on November 7, 2007, six days later. Consequently, his motion is untimely and the Court does not have authority to consider the merits of his motion.Motion to Amend
Brokenbrough moves to amend his motion for postconviction relief. Superior Court Criminal Rule 61(b)(6) allows a postconviction relief motion to be amended "as a matter of course at any time before a response is filed or thereafter by leave of court, which shall be freely given when justice so requires." A motion under this rule is addressed at the discretion of the court. At the time that Brokenbrough filed his motion to amend, the State had already responded to his postconviction motion. Because the time period for Brokenbrough to amend his postconviction motion had passed, the Court did not consider his new claims in deciding his postconviction motion. The Court will now address his new claims as a second motion for postconviction relief.By his motion, Brokenbrough asserts for the first time that his conviction for first degree assault is defective under Williams v. State and this Court's later decision in State v. Kirk. He claims that there was insufficient evidence to prove that the assault of Dennis Nichols was "in furtherance of" his attempted robbery and that his indictment was deficient because it did not reflect the law as set forth in Williams. Brokenbrough's claims are procedurally barred under Rule 61(i)(3) because he did not raise them in any of the proceedings leading to judgment. Brokenbrough argues that his claims survive procedural default because they are based on a newly retroactive right. This is incorrect. There is no newly recognized right applicable to this case because Williams and Kirk were decided before Brokenbrough's conviction. Pursuant to Rule 61(i)(1), claims based on newly retroactive rights are permitted only when the new right is recognized after defendant's judgment of conviction is final. Brokenbrough's judgment became final on April 11, 2006, well after the December 2002 decision in Williams and the February 2004 decision in Kirk. Therefore, he fails to show cause for not raising his claims under Williams and Kirk in earlier proceedings. Because Brokenbrough fails to overcome procedural default under Rule 61(i)(3), his claim is SUMMARILY DISMISSED.
818 A.2d 906 (Del. 2002).
2004 WL 396407 (Del. Super).
Def. Req. to Amend at 3-6, D.I. 83.
Super. Ct. Crim. R. 61(i)(3).
Super. Ct. Crim. R. 61(i)(1) permitting a claim that "asserts a retroactively applicable right that is newly recognized after the judgment of conviction is final [that is brought no] more than one year after the right is first recognized by the Supreme Court of Delaware or by the United States Supreme Court." (emphasis added).