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State v. Cook

Superior Court of Delaware, New Castle County
Jan 28, 2011
ID No. 0608025757 (Del. Super. Ct. Jan. 28, 2011)

Opinion

ID No. 0608025757.

January 28, 2011.

Upon Defendant's Third Motion for Postconviction Relief — SUMMARILY DISMISSED


ORDER


1. On October 19, 2010, after the denial of his second motion for postconviction relief was affirmed, Defendant filed this, his third motion for postconviction relief.

State v. Cook, Del. Super., Cr. ID No. 0608025757, Silverman, J. (April 21, 2010).

Cook v. State, 5 A.3d 629 (Del. 2010) (TABLE).

2. The Prothonotary properly referred the motion for preliminary review.

Super. Ct. Crim. R. 61(d)(1).

3. After preliminary review by examination of the motion and the file's contents, including the prior motions for postconviction relief and the transcript of the January 2008 plea colloquy, it appears this motion is subject to summary dismissal.

Id.; Super. Ct. Crim. R. 61(d)(4).

4. Although the third motion for postconviction relief is not a mirror image of the prior motions, it is close. Defendant again claims it was wrong to indict him under 11 Del.C. § 772 for conduct that happened between 1996 and 2003, because that statute was not enacted until September 9, 1998. Thus, Defendant argues, the court lacked jurisdiction, and counsel provided ineffective assistance because counsel advised Defendant "to plead guilty without informing [Defendant] that the indictment was no good." Defendant further claims counsel was ineffective and his plea involuntary because "counsel never explained to [Defendant] the elements of the offense to which [counsel] advised [Defendant] to plead guilty."

5. The court has previously held that the indictment was lawful. Thus, that claim is barred. There are several reasons why the indictment's timing does not help Defendant, including the fact that one of the rapes had to have occurred no earlier than December 2000. Section 772 was enacted on September 9, 1998. That means Defendant pleaded guilty to a rape that happened years after § 772 was the law.

State v. Cook, 2010 WL 2244372 (Del. Super. Ct. May 20, 2009) (Silverman, J.) aff'd, 5 A.3d 629 (Del. 2010) (TABLE).

Super. Ct. Crim. R. 61(i)(4).

This date is misstated in the order denying Defendant's first motion for postconviction relief, State v. Cook, Del. Super., Cr. ID No. 0608025757, at 6 (May 21, 2009) (Silverman, J.).

71 Del. Laws ch. 285, § 12 (1998) (codified at 11 Del. C. § 772).

6. Defendant's other claim that counsel was ineffective for not challenging the indictment is also barred. In Defendant's earlier motions for postconviction relief, the court already considered and denied that claim. Defendant alleged nothing new here.

Super. Ct. Crim. R. 61(i)(4).

7. Now, in his third motion for postconviction relief, Defendant claims for the first time that his guilty plea was involuntary because counsel did not explain the offense. Defendant's claim, made three years after he pleaded guilty, is barred. Not that it matters at this late date, but even if counsel did not explain the offense, Defendant's plea colloquy shows the court explained the crime to Defendant.

Super. Ct. Crim. R. 61(i)(2).

8. Defendant's latest motion for postconviction relief does not establish anything approaching a miscarriage of justice nor does it allege new facts that would lead the court to reconsider in the interests of justice. The court again recalls the DNA evidence was all but conclusive. The child victim conceived Defendant's baby long after the rape statute was amended.

Super. Ct. Crim. R. 61(i)(4)-(5).

For the foregoing reasons, Defendant's Third Motion for Postconviction Relief is SUMMARILY DISMISSED. The Prothonotary shall notify the Defendant.

IT IS SO ORDERED.


Summaries of

State v. Cook

Superior Court of Delaware, New Castle County
Jan 28, 2011
ID No. 0608025757 (Del. Super. Ct. Jan. 28, 2011)
Case details for

State v. Cook

Case Details

Full title:STATE OF DELAWARE, v. LEROY COOK, SR., Defendant

Court:Superior Court of Delaware, New Castle County

Date published: Jan 28, 2011

Citations

ID No. 0608025757 (Del. Super. Ct. Jan. 28, 2011)

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