Opinion
Cr. ID No. 84000200DI.
Submitted: March 15, 2010.
Decided: March 29, 2010.
COMMISSIONER'S REPORT AND RECOMMENDATION THAT DEFENDANT'S MOTION FOR POSTCONVICTION RELIEF SHOULD BE SUMMARILY DISMISSED.
Kevin M. Carroll, Esquire, Deputy Attorney General, Department of Justice, Wilmington, Delaware, Attorney for the State.
Durwin G. Harmon, James T. Vaughn Correctional Center, Smyrna, Delaware, pro se.
This 29th day of March 2010, upon consideration of Defendant's Motion for Postconviction Relief, it appears to the Court that:
1. On the morning of January 6, 1984, Defendant Harmon approached Ann Lambert as she was exiting a bank on DuPont Highway in New Castle, Delaware. Defendant Harmon pointed a gun at Lambert and ordered her into her car. He got in and sat in the rear passenger seat. Defendant Harmon then forced Lambert to drive to a secluded location off New Castle Avenue in New Castle, Delaware. During the drive, Defendant Harmon, who kept his gun pointed at Lambert, shot her in the neck. After he shot Lambert, Defendant Harmon forced her to stop the car, and raped her. Following the rape, Defendant Harmon stole Lambert's car and purse. Despite her injuries, Lambert was able to walk to a car dealership to get help.
2. On August 6, 1984, a jury found Defendant guilty of First Degree Kidnapping, First Degree Rape, First Degree Assault, First Degree Robbery, three counts of Possession of a Deadly Weapon During the Commission of a Felony, and Possession of a Deadly Weapon by a Person Prohibited. On November 21, 1984, the Court sentenced Harmon to the following consecutive sentences: (1) Rape First Degree-life in prison, the first twenty years are a minimum mandatory sentence; (2) Possession of a Deadly Weapon During the Commission of a Felony-five years for each of the three counts for a total of fifteen years; 3) Kidnapping First Degree-life in prison; 4) Assault First Degree-five years; 4) Robbery First Degree — three years; and 6) Possession of a Deadly Weapon by a Person Prohibited-one year.
3. By Order dated July 5, 1985, the Delaware Supreme Court affirmed the convictions on appeal. Defendant Harmon's convictions became final on July 25, 1985, when the Delaware Supreme Court's mandate issued.
4. Thereafter, Defendant filed two motions for postconviction relief. The first, filed on January 14, 1997, was denied by the Delaware Superior Court on April 15, 1997, and the denial was affirmed by the Delaware Supreme Court on December 2, 1998. The second was filed on July 3, 2006, was denied by the Delaware Superior Court on October 30, 2006, and the denial was affirmed by the Delaware Supreme Court on March 8, 2007.
5. Defendant filed this third motion for postconviction relief on March 9, 2010. In the subject motion, Defendant Harmon raises only one claim challenging only his conviction on the charge of Possession of a Deadly Weapon by a Person Prohibited, for which he received a one year sentence. What is not at issue in the subject motion are any of Defendant's other convictions or sentences, for which he is serving two consecutive life sentences plus an additional twenty-three years.
6. Prior to addressing the substantive merits of any claim for postconviction relief, the Court must first determine whether the defendant has met the procedural requirements of Superior Court Criminal Rule 61. If a procedural bar exists, then the claim is barred, and the Court should not consider the merits of the postconviction claim. Moreover, if it plainly appears from the motion for postconviction relief that the movant is not entitled to relief, the Court may enter an order for its summary dismissal and cause the movant to be notified.
Younger v. State, 580 A.2d 552, 554 (Del. 1990).
Id.
Super.Ct.Crim.R. 61(d)(4).
7. In this case, Defendant's motion is both procedurally barred and without merit. First, the subject motion is procedurally barred pursuant to Superior Court Criminal Rule 61(i). It is untimely (filed almost 25 years after the Delaware Supreme Court's mandate issued); the claim Defendant raises was not previously asserted in a prior post conviction proceeding as required by the court rules and is therefore procedurally barred; nor was the claim previously asserted at trial or on direct appeal as required by the court rules. Defendant had time and opportunity to raise any issue he so desired in a timely filed postconviction motion and either did so, or neglected to do so. The issue Defendant raises herein could have been raised in a timely filed motion. Defendant raises nothing new or recently discovered. Having already been provided with a full and fair opportunity to present any issues desired to be raised, any attempt at this late juncture to raise a new claim is barred. Accordingly, Defendant's motion should be dismissed because it is procedurally barred.
Super.Ct.Crim.R. 61(i)(1). If the final order of conviction occurred before July 1, 2005, the motion must be filed within three years. If the final order of conviction occurred on or after July 1, 2005, the motion must be filed within one year. See, Super.Ct.Crim.R. 61(i)(1) (July 1, 2005) (amending Super.Ct.Crim.R. 61 (i)(1) (May 1, 1996).
Super.Ct.Crim.R. 61(i)(2).
Super.Ct.Crim.R. 61(i)(3).
8. Defendant's motion should also be dismissed on the separate and independent basis that it lacks merit. Defendant's motion is based on a flawed premise. Defendant's sole contention in the subject motion is that the Superior Court lacked jurisdiction to charge him with Possession of a Deadly Weapon by a Person Prohibited, Count VIII of the indictment, for which he received a one year sentence.
9. Count VIII of the indictment alleges the following:
POSSESSION OF A DEADLY WEAPON BY A PERSON PROHIBITED in violation of Title 11, Section 1448 of the Delaware Code of 1974, as amended.
DURWIN HARMON, on or about the 6th day of January, 1984, in the County of New Castle, State of Delaware, did have in his possession a handgun, a deadly weapon as defined under 11 Del. C. § 222(5), after having pled guilty, in Criminal Action Numbers IN83-11-0084 and IN83-11-0085, in the Superior Court of the State of Delaware, in and for New Castle County, on December 22, 1983, to the charges of Burglary Second Degree and Theft (Felony).
10. Defendant contends that even though he pled guilty to the charges of Burglary Second Degree and Theft (Felony) on December 22, 1983, the Superior Court lacked jurisdiction to charge him on January 6, 1984, with possession of a deadly weapon by a person prohibited because he had not yet been sentenced, and because at the time of the charge on January 6, 1984, his conviction could not yet be deemed a final judgment.
11. The indictment was correct and the Superior Court had jurisdiction to charge him on January 6, 1984, with possession of a deadly weapon by a person prohibited.
12. Any person who has been convicted of a felony is prohibited from possessing a deadly weapon pursuant to 11 Del. C. § 1448. A person is deemed to have been "convicted", as that word is used in Delaware's Criminal Code in general and for this specific offense in particular, upon a plea of guilty.
See, 11 Del. C. § 222(3).
13. It is upon the entry of the guilty plea to a felony that a defendant loses the right to possess deadly weapons. The loss of the right to possess a deadly weapon does not arise at some later date (ie. when the defendant is sentenced or when the conviction becomes a final judgment) but upon the entry of the guilty plea.
See, Kipp v. State, Del.Supr., 704 A.2d 839, 841-42 (1998) (a defendant's loss of the future right to possess deadly weapons upon entry of certain guilty pleas is merely a collateral consequence of such a plea) (emphasize added).
14. In this case, Defendant has failed to overcome any of the procedural bars by showing a "colorable claim that there was a miscarriage of justice" or that "reconsideration of the claim is warranted in the interest of justice." The "miscarriage of justice" exception is a narrow one and has been applied only in limited circumstances. The defendant bears the burden of proving that he has been deprived of a "substantial constitutional right." The Defendant has failed to provide any basis, and the record is devoid of, any evidence of manifest injustice. The Court does not find that the "interests of justice" require it to consider this otherwise procedurally barred claim for relief.
Younger v. State, 580 A.2d 552, 555 (Del. 1990).
Id.
Id.
15. In this case, Defendant's claim is procedurally barred and lacks merit. For all of the foregoing reasons, Defendant's Motion for Postconviction Relief should be denied.
IT IS SO RECOMMENDED.