Opinion
I.D. No. 1308007988
02-13-2019
STATE OF DELAWARE v. CURTIS FINNEY, Defendant.
Curtis Finney, pro se, Smyrna, DE. Mark Denny, Esquire, Deputy Attorney General, Department of Justice, 820 N. French St., Wilmington, Delaware, Attorney for the State.
Upon Defendant's Motion for Postconviction Relief
SUMMARILY DISMISSED. ORDER Curtis Finney, pro se, Smyrna, DE. Mark Denny, Esquire, Deputy Attorney General, Department of Justice, 820 N. French St., Wilmington, Delaware, Attorney for the State. WHARTON, J.
This 13th day of February, 2019 upon consideration of Defendant's Motion for Postconviction Relief and the record in this matter, it appears to the Court that:
D.I. 91.
1. Defendant Curtis Finney ("Finney") was convicted after a bench trial of Aggravated Possession of Heroin, Possession of a Firearm During the Commission of a Felony ("PFDCF") (.45 caliber handgun during Aggravated Possession of Heroin), PFDCF (.22 caliber handgun during Aggravated Possession of Heroin), Drug Dealing of Heroin, PFDCF (.45 caliber handgun during Drug Dealing of Heroin), PFDCF (.22 caliber handgun during Drug Dealing of Heroin), Possession of Cocaine, Possession of a Firearm by a Person Prohibited ("PFBPP") (.45 caliber handgun), PFBPP (.22 caliber handgun), Possession of Ammunition by a Person Prohibited ("PABPP") (.45 caliber ammunition), PABPP (.22 caliber ammunition), Possession of a Deadly Weapon by a Person Prohibited ("PDWBPP) (.45 caliber handgun while possessing a controlled substance - heroin), PDWBPP (.22 caliber handgun while possessing a controlled substance - heroin), PDWBPP (.45 caliber handgun while possessing a controlled substance - cocaine), PDWBPP (.22 caliber handgun while possessing a controlled substance - cocaine), Driving While Suspended or Revoked.
2. Finney's direct appeal to the Delaware Supreme Court resulted in a remand to this Court for resentencing. On remand, this Court ultimately granted Finney's Motion for Correction of Sentence addressed to issues of multiplicity and adopted Finney's proposed sentence order. On May 1, 2017, Finney was sentenced to 25 years at Level V, suspended after two years at Level 5 for decreasing levels of supervision on the Drug Dealing charge; five years at Level V for each of the two PFDCF charges (five years for the .45 caliber handgun and five years for the .22 caliber handgun); five years at Level V for each of the PFBPP charges (five years for the .45 caliber handgun and five years for the .22 caliber handgun) (the sentences for the PFBPP charges are concurrent); and concurrent suspended sentences on the two PABPP charges, the Possession of Cocaine charge, and the Driving While Suspended or Revoked charge. He was not sentenced on the remaining charges for which he was convicted because they were duplicative of charges for which he was sentenced.
Finney v. State, 2016 WL 3568176 (Del. 2016).
See, D.I. 85-88.
D.I. 88.
3. After unsuccessfully seeking a sentence modification, Finney filed this Motion for Postconviction Relief ("Motion"), his first, on February 11, 2019. In it he raises four claims for relief: (1) ineffective assistance of counsel when counsel "withdrew my suppression motion without any real reasoning;" (2) violation of due process as a result of being sentenced on a violation of probation before he was convicted of any new charges; (3) double jeopardy for sentencing [him] for four PFBB & four PFDCF when [he] only got arrested with two firearms; and (4) "Fruit of poisonous tree dropping my probable cause for my traffic stop, but still finding me guilty on any charges that followed."
D.I. 91.
Id.
4. Before addressing the merits of a defendant's motion for postconviction relief, the Court must first apply the procedural bars of Superior Court Criminal Rule 61(i). If a procedural bar exists, then the Court will not consider the merits of the postconviction claim.
Younger v. State, 580 A.2d 552, 554 (Del. 1990).
Id.
5. Under Delaware Superior Court Rules of Criminal Procedure, a motion for post-conviction relief can be barred for time limitations, successive motions, procedural default, or former adjudication. A motion exceeds time limitations if it is filed more than one year after the conviction becomes final, or, if it asserts a retroactively applicable right that is newly recognized after the judgment of conviction is final, more than one year after the right was first recognized by the Supreme Court of Delaware or the United States Supreme Court. A second or subsequent motion is considered successive and therefore barred and subject to summary dismissal unless the movant was convicted after a trial and "pleads with particularity that new evidence exists that the movant is actually innocent" or "pleads with particularity a claim that a new rule of constitutional law, made retroactive to cases on collateral review by the United States Supreme Court or the Delaware Supreme Court, applies to the movant's case and renders the conviction ... invalid." Grounds for relief "not asserted in the proceedings leading to the judgment of conviction" are barred as procedurally defaulted unless the movant can show "cause for relief" and "prejudice from [the] violation." Grounds for relief formerly adjudicated in the case, including "proceedings leading to the judgment of conviction, in an appeal, in a post-conviction proceeding, or in a federal habeas corpus hearing" are barred.
Super. Ct. Crim. R, 61(i).
Super. Ct. Crim. R. 61(i)(1).
Super. Ct. Crim. R. 61(i)(2); Super. Ct. Crim. R. 61(d)(2).
Super. Ct. Crim. R. 61(i)(3).
Super. Ct. Crim. R. 61(i)(4).
6. The bars to relief do not apply either to a claim that the court lacked jurisdiction or to a claim that pleads with particularity that new evidence exists that creates a strong inference of actual innocence, or that a new retroactively applied rule of constitutional law renders the conviction invalid. The bars remain applicable here because Finney has not claimed that the Court lacked jurisdiction, nor has he met the pleading requirements of Rule 61(d)(2)(i) or (d)(2)(ii).
Super. Ct. Crim. R. 61(i)(5).
Super. Ct. Crim. R. 61(d)(2)(i) and (ii).
7. The Motion is barred for multiple reasons. It is untimely, having been filed more than a year after Finney's judgment of conviction became final. It is subject to procedural default because it raises grounds for relief - the due process claim and the "fruit of the poisonous" tree claim - not previously asserted without showing cause for relief from the procedural default and prejudice from a violation of his rights. It also raises a double jeopardy claim that was adjudicated before - in his favor. He is not serving four PFDCF charges, only two, nor is he serving four PFBPP sentences, only two, and those two run concurrently.
D.I. 88.
8. Summary dismissal is appropriate 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. It is plain from the Motion and the record in this case that Finney is not entitled to relief. The motion seeks relief that either is barred, or he already has obtained.
Super. Ct. Crim. R. 61(d)(5). --------
Therefore, since it plainly appears from Motion for Postconviction Relief and the record in this case that Bromwell is not entitled to relief, the Motion for Postconviction Relief is SUMMARILY DISMISSED.
IT IS SO ORDERED.
/s/_________
Ferris W. Wharton, J. oc: Prothonotary
cc: Investigative Services