Opinion
ID No. 82003606DI.
Submitted: June 5, 2007.
Decided: July 6, 2007.
ORDER
This 6th day of July, 2007, upon consideration of the defendant's pro se motion for postconviction relief, it appears that:
1. Defendant has filed this Motion for Postconviction Relief pursuant to Superior Court Criminal Rule 61. For the reasons stated below, Defendant's Motion is SUMMARILY DISMISSED.
2. On January 20, 1983, defendant, Timothy Harr (Harr) pled guilty to two counts of Rape 1st Degree.
3. On the same day, Harr was sentenced to Level V incarceration for life on each count of Rape 1st Degree. Immediately following sentencing, defendant was returned to North Carolina where he was serving a criminal sentence.
4. Harr did not file a direct appeal of his conviction.
5. On June 5, 2007, Harr filed this motion for postconviction relief alleging ineffective assistance of counsel and an unfulfilled plea agreement.
6. With certain exception, "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). Rule 61(i)(1) was amended to reduce the time for filing a motion for postconviction relief from three (3) years to one (1) year, effective July 1, 2005. Since Harr's conviction was final prior to that date he is entitled to the three year time limit.
7. Harr's motion was filed June 5, 2007, more than twenty-three years after his judgment of conviction became final, and seven months after his return to Delaware. In his motion, Harr acknowledges the time limit for filing a motion for post-conviction relief but asserts that his claim is not barred due to a "miscarriage of justice." Harr cites Rule 61(i)(5) which states, "[t]he bars to relief in paragraphs (1), (2), and (3) of this subdivision shall not apply to a claim that the court lacked jurisdiction or to 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."
Because Harr did not file a direct appeal of his conviction, it became final on February 19, 1983, thirty (30) days after the Superior Court imposed sentence on January 20, 1983.
Harr was returned to Delaware on November 9, 2005.
Super. Ct. Crim. R. 61(i)(5).
8. According to Harr:
James A. Bayard, Jr. did not inform his client of the ramifications of his accepting this plea. Harr had already been sentenced in the State of North Carolina. When he accepted the plea of life sentences Harr was informed that this would run `with North Carolina's sentence, the same way Pennsylvania and New Jersey were running their time.' This is an 80 year life sentence he was accepting. It was paramount that he knew specifically of what he was getting into. Harr was never at any time given notice about his time to be run consecutively.
See pages 5-6 of the Memorandum in support of Motion for: Post-Conviction Relief attached to Harr's motion for postconviction relief filed June 5, 2007.
9. Due to the 23 year delay in the bringing of this motion, the transcript of Harr's guilty plea colloquy is not available. Harr's sentencing order states:
January 1983 notes are not available and are presumed "destroyed" as the retention period for criminal notes is 20 years.
IT IS THE SENTENCE OF THIS COURT THAT THE DEFENDANT SHALL:
AS TO IN82-05-1707:
1. Be imprisoned for life beginning at the expiration of sentence now serving in North Carolina.
AS TO IN82-05-1710:
1. Be imprisoned for life beginning at the expiration of sentence imposed in IN82-05-1707.
AS TO BOTH CHARGES:
1. Be committed to the Department of Corrections for the purpose of carrying out this sentence.
10. It is clear from the sentencing order that Harr's incarceration in Delaware was to begin after his sentence in North Carolina was completed, and that his life sentences in Delaware are consecutive.
11. Harr was present at sentencing and heard the sentence imposed by Judge, now retired Justice, Joseph Walsh. Harr was or should have been aware in January 1983, that his sentences were consecutive and would not begin to run until the completion of his sentence in North Carolina. If Harr was unclear about his sentence or believed it to be illegal he had the opportunity to appeal. Harr did not appeal or file a request for modification of sentence.
12. Harr has not raised a claim that this court lacked jurisdiction. Furthermore, I find that Harr has failed to raise a colorable claim that there was a miscarriage of justice which undermined the proceedings.
13. Harr's claim is time-barred under Superior Court Criminal Rule 61(i)(1). His alleged basis for relief does not constitute a retroactively applicable right which would extend the time limitation.
WHEREFORE, defendant's motion for post-conviction relief is SUMMARILY DISMISSED.
IT IS SO ORDERED.