Opinion
ID No. 9711014977.
Submitted: March 19, 2007.
Decided: June 19, 2007.
On Defendant's Pro Se Motion for Postconviction Relief.
DISMISSED.
Caroline L. Cross, Deputy Attorney General, Wilmington, DE.
Gregory A. Denston, Smyrna, DE, Pro se.
ORDER
On this 19th day of June, 2007, upon consideration of Defendant's Motion for Postconviction Relief it appears to the Court that:
1. On March 19, 2007 Gregory Denston ("Defendant"), filed a pro se Motion for Postconviction Relief pursuant to Superior Court Criminal Rule 61 ("Rule 61"). For the reasons set forth below, Mr. Denston's Motion for Postconviction Relief is DISMISSED.
2. On September 29, 1998, Mr. Denston entered a guilty plea to the charge of Attempted Murder First Degree and Possession of a Deadly Weapon During the Commission of a Felony. The Defendant then filed a motion to withdraw his guilty plea, which the Court denied. On January 8, 1999, the Court sentenced Mr. Denston to thirty years of incarceration. Mr. Denston did not file a direct appeal, but did file a motion for modification of his sentence, which the Court denied on June 3, 1999.
3. On March 14, 2001, Mr. Denston filed his first motion for postconviction relief. Within that motion he asserted three claims: 1) the Court failed to follow the sentencing recommendation of the State and therefore did not honor the plea agreement; 2) the Defendant was denied his right to a jury trial because he accepted a plea agreement and 3) ineffective assistance of counsel. This Court issued its Memorandum Opinion on February 28, 2002 denying the Defendant's first motion.
State v. Denston, 2002 WL 338069 (Del.Super.Ct.).
4. On March 19, 2007, Mr. Denston filed his second motion for postconviction relief asserting essentially the same claims as his first motion: "(1) Guilty plea was invalid since the Court imposed a greater sentence than the sentence that the State recommended; (2) denial of right to jury trial due to guilty plea and ineffective assistance of counsel." This is the motion currently before the Court.
Def. Mot. at 2.
5. Before this Court will review the merits of a postconviction claim, it will first ensure the motion meets the procedural requirements set forth in Rule 61(i). For at least two reasons, Mr. Denston's second postconviction motion fails to meet those requirements. First, Rule 61(i)(1) requires motions for postconviction relief to be filed no later than three years from the date a defendant's conviction is final. Since Mr. Denston did not file a direct appeal, his conviction was deemed final thirty days from the date he was sentenced, January 8, 1999. Thus, his conviction was final February 7, 1999, and Mr. Denston was therefore required to file all postconviction motions no later than February 7, 2002. As indicated above, the motion before this Court was filed March 19, 2007, about five years past due. As a result, Mr. Denston's second motion for postconviction relief is untimely, and he has offered nothing to overcome this procedural bar.
Super. Ct. Crim. R. 61(i)(1) states that "[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." Super. Ct. Crim. R. 61(i)(1) was amended to bar postconviction motions filed more than one year from the final judgment, however, the amended rule is not applicable to the case at hand since it became effective on July 1, 2005 and is only applicable to subsequent final judgments.
Miller v. State, 2005 WL 1950222 (Del.Super.Ct.) (The Defendant's motion was filed more than three years past the date his conviction became final and was therefore considered untimely and procedurally barred.).
Rule 61(i)(5) states the procedural bar of untimeliness can be overcome if the court lacked jurisdiction or if the defendant asserts a "colorable claim that there was a miscarriage of justice because of a constitutional violation that undermined the fundamental legality, reliability, integrity or fairness of the proceedings leading to the judgment of conviction."
6. Second, even if the Defendant could overcome the untimeliness of his motion, Mr. Denston's motion is also procedurally barred pursuant to Rule 61(i)(4), which states that "[a]ny ground for relief that was formerly adjudicated, . . . in a postconviction proceeding, . . . is thereafter barred, unless reconsideration of the claim is warranted in the interest of justice." It has been well established that "a defendant is not entitled to have a court re-examine an issue that has been previously resolved 'simply because the claim is refined or restated.'"
Super. Ct. Crim. R. 61(i)(4).
Skinner v. State, 607 A.2d 1170, 1172 (Del. 1992), citing Riley v. State, 585 A.2d 719, 721 (Del. 1990). See also, Younger v. State, 580 A.2d 552, 556 (Del. 1990) ("Neither federal nor state courts are required to relitigate in postconviction proceedings those claims which have been previously resolved.") (citations omitted).
7. Here, the two claims asserted in the Defendant's second motion have been previously ruled upon by this Court, and are therefore precluded unless the Defendant can overcome the procedural bars. Since Rule 61(i)(4) has been likened to the "law of the case" doctrine, the Courts have enumerated two specific exceptions to the procedural bar: 1) "the previous ruling was clearly in error or there has been an important change in circumstances, in particular, the factual basis for issues previously posed," or 2) in the interest of justice.
Weedon v. State, 750 A.2d 521, 527-528 (Del. 2000) (citing Kenton v. Kenton, 571 A.2d 778, 774 (Del.Super.Ct. 1990)).
Rule 61(i)(5); State v. Corbin, 1999 WL 167782 (Del.Super.Ct.) (citations omitted); Weedon, 750 A.2d at 527-528 (citing Brittingham v. State, 705 A.2d 577, 579 (Del.Super.Ct. 1998). State v. Slade, 2006 WL 1520574 (Del.Super.Ct.) (citing State v. Wright, 653 A.2d 288, 298 (Del.Super.Ct. 1994)) ("Interest of justice has been narrowly defined to require the movant to show that the trial court lacked authority to convict or punish.").
8. Mr. Denston has not established either exception. Mr. Denston has not asserted that a new applicable rule is now in place, nor has he asserted that factual circumstances have changed. Further, Mr. Denston has not asserted that this Court lacked the authority to convict and sentence the Defendant, which is the requirement for Mr. Denston to establish the interest of justice exception. Because Mr. Denston has not asserted a concern of preventing injustice that would allow this Court to revisit a previously decided claim, his second motion is also procedurally barred as formerly adjudicated pursuant to Rule 61(i)(4).
9. For the foregoing reasons, Mr. Denston's Motion for Postconviction Relief is hereby dismissed pursuant to Rule 61(d)(4).
Super. Ct. Crim. R. 61(d)(4) states as follows:
Summary Dismissal. If it plainly appears from the motion for postconviction relief and the record of prior proceedings in the case that the movant is not entitled to relief, the judge may enter an order for its summary dismissal and cause the movant to be notified.
IT IS SO ORDERED.