Opinion
I.D. # 87001256DI, IN87-03-0-73R1, 0074R1, 0075R1, 0076R1, 0077R1, 0078R1, 0098R1, 0099R1, 0101R1.
Submitted: September 19, 2001.
Decided: December 17, 2001.
On Defendant's Motion for Postconviction Relief — DENIED.
ORDER
Before the Court is a motion for postconviction relief filed by Carmelo Claudio pursuant to Super. Ct. Crim. R. 61. For the reasons that follow, the defendant's motion is DENIED.
1. A jury trial was held on December 9, 1987, and the defendant was found guilty on the following charges: two counts of Robbery in the First Degree, four counts of Possession of a Deadly Weapon During the Commission of a Felony; Murder in the First Degree; Attempted Murder in the First Degree; and Conspiracy in the First Degree. The verdict was affirmed on appeal.
2. On August 9, 2001, the defendant filed this motion for postconviction relief. In his motion, the defendant asserts the following claims: the indictment was invalid; the defendant received ineffective assistance of counsel; the entire proceeding was infected by "structural error;" and the Superior Court lacked subject matter jurisdiction.
3. When ruling on a motion for postconviction relief, this Court must address the procedural bars before considering the merits of the motion. Rule 61(i) provides:
(i) Bars to relief. (i) Time limitation. A motion for postconviction relief may not be filed more than three years after the judgment of conviction is final or, if it asserts a retroactively applicable right that is newly recognized after the judgment of conviction is final, more than three years after the right is first recognized by the Supreme Court of Delaware or by the United States Supreme Court.
Younger v. State, Del. Supr., 580 A.2d 552 (1990).
This time limitation bar to relief may be overcome by the charge of Super. Ct. Crim. R. 61(i)(5) which provides:
(5) Bars inapplicable. The bars to relief in paragraphs (1), (2), and (3) of this subdivision shall not apply to a claim that the court lacked jurisdiction. . . .
4. Defendant's claims other than those that challenge the Court's jurisdiction are time barred pursuant to Super. Ct. Crim. R. 61(i)(1) because his judgment of conviction became final more than three years before he filed the instant motion and his motion fails to assert any newly recognized retroactively applicable right.
5. The defendant attempts to overcome the time limitation bar by claiming the Superior Court did not have jurisdiction over his case. In support of this claim, the defendant argues that there is no transcript which shows that 12 grand jurors voted to return the indictment in his case and that the indictment was returned ed before a judge in open court pursuant to Super. Ct. Crim. R. 6(f). The failure to have such a transcript, according to the defendant, is a violation of the "grand jury clause" of the fifth amendment and Super. Ct. Crim. R. 6. The long standing and well established practice of the Superior Court is that all grand jury indictments are returned before a judge in open court. This has been the practice of the Superior Court since well before the day defendant's indictment was returned. The Court takes judicial notice of this fact pursuant to D.R.E. 201. The Court also takes judicial notice of the fact that 12 of the 15 members of the grand jury in New Castle County constitute a quorum for the transaction of business, and if fewer than this number are present, even for a moment, the proceedings must stop. Consequently, at least 12 grand jurors voted to return the indictment in the defendant's case. The Court also notes that nothing in the defendant's motion or the record in this case suggests in any way that these practices governing the return of grand jury indictments in this Court were not followed with respect to the defendant's indictment. Moreover, in the Court's file is a clocked-in copy of the indictment indicating that it was, indeed, returned consistent with Super. Ct. Crim. Rule 6(f) on April 1, 1987.
For the foregoing reasons, the defendant's motion for postconviction relief is DENIED.