Opinion
Cr. ID. No. 30302183DI.
Submitted: May 13, 2010.
Decided: May 20, 2010.
COMMISSIONER'S REPORT AND RECOMMENDATION THAT DEFENDANT'S MOTION FOR POSTCONVICTION RELIEF SHOULD BE SUMMARILY DISMISSED.
Richard Andrews, State Prosecutor, Department of Justice, Wilmington, Delaware, Attorney for the State.
Schawn M. Helm, United States Penitentiary-Victorville, Adelanto, California, pro se.
This 20th day of May 2010, upon consideration of Defendant's Motion for Postconviction Relief, it appears to the Court that:
1. Defendant Helm pled guilty on May 27, 1994 to Attempted Assault First Degree and, on that same date, was sentenced to five years incarceration at Level V, suspended for five years at supervision Level IV-home confinement. After serving six months at supervision Level IV, the sentence was suspended for four years and six months at supervision Level III. After serving six months at supervision Level III, the remainder of the sentence was suspended for four years at supervision Level II.
2. Defendant Helm did not file a direct appeal from his guilty plea or sentence.
3. As of June 25, 2007, Defendant Helm had fully served his sentence, was fully discharged from probation, and on June 25, 2007, this case was closed.
4. On April 29, 2010, after Defendant Helm had completed his sentence, including probation, he filed a Motion for Postconviction Relief. Defendant's goal is to withdraw his guilty plea and/or vacate his sentence. Defendant contends that he was sentenced on December 19, 2007 in the United States District Court for the District of Maryland to 262 months of incarceration. Defendant contends that his conviction in this case enhanced the sentence he received by the federal court in Maryland.
The nature of the federal charges and the history of the federal case were not disclosed, nor are known, to this court.
It is noted that Defendant Helm has 5 felony convictions and 32 misdemeanor convictions in Delaware. Defendant Helm filed Rule 61 motions in two other cases: Cr.ID. Nos. 9609010407 (drug related felony) and 0008020515 (drug related felony) in which he also sought to withdraw his guilty plea and or vacate the sentences in those cases for essentially the same reasons. By Commissioner's Report dated April 22, 2010, it was recommended that those motions be summarily dismissed.
The Court is unaware whether Defendant filed similar motions in the other two of his five felony convictions.
5. Defendant raises three contentions in his Rule 61 motion:
1) that his plea was not knowingly and intelligently made because he was not aware that the conviction could be used years later to enhance another sentence in another court in another state;
2) that it is unconstitutional for his conviction to be used to enhance a subsequent sentence; and
3) that his counsel was ineffective because he "[m]ade no attempt to make any attempt for a defense. No witnesses or weapon, just hearsay."
6. When considering a Rule 61 motion for postconviction relief, if it plainly appears from the motion 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.
Super.Ct.Crim.R. 61(d)(4).
7. The subject motion for postconviction relief should be summarily dismissed for the reasons discussed below.
8. First, Defendant lacks standing to pursue a motion for postconviction relief because he has completed his sentence in this case and thus is no longer "in custody or subject to future custody" under the sentence for which postconviction relief is being sought. When a defendant is not in custody or subject to future custody for the underlying offense or challenged sentence, the defendant lacks standing to seek Rule 61 relief and the Rule 61 motion should be summarily dismissed without reaching the substantive claims. Defendant lacks standing to seek Rule 61 relief in this case because he has fully served his sentence for which postconviction relief is being sought and, therefore, his motion should be summarily dismissed.
Super.Ct.Crim.R. 61(a)(1); Ruiz v. State, 2008 WL 1961187, at *2 (Del. 2008) (a person loses standing to seek postconviction relief under Rule 61 where the defendant is not in custody or subject to future custody for the underlying offense or challenged sentence.); State v. Hinson, 2006 WL 337031, at *2 (Del.Super.)("All courts in Delaware that have considered whether postconviction relief under Rule 61 is potentially available to a person who is not `in custody or subject to future custody' for the challenged sentence have agreed that such relief under Rule 61 is not available.")
Id.
9. Second, even if Defendant did not lack standing to seek Rule 61 relief in this case, Defendant's motion is procedurally barred. When a procedural bar exists, then the claim is barred, and the Court should not consider the merits of the postconviction claim.
Younger v. State, 580 A.2d 552, 554 (Del. 1990).
10. The subject motion is procedurally barred pursuant to Superior Court Criminal Rule 61(i). Rule 61(i)(1) applies because Defendant filed this motion more than three years after his final order of conviction. The motion is therefore untimely. Defendant's final order of conviction was in 1994, and this motion filed on April 29, 2010, was filed over 15 years later, clearly outside the applicable three-year limit.
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).
11. Moreover, the claims that Defendant raises in the subject Rule 61 motion were not previously asserted in a prior post conviction proceeding as required by the court rules and are therefore procedurally barred; nor were the claims 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. 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)(2).
Super.Ct.Crim.R. 61(i)(3).
12. Indeed, as to Defendant's claim that his counsel was ineffective for failing to defend him, this contention was known to Defendant at the time of Defendant's plea in 1994. Defendant was aware of, had time to, and the opportunity to raise this contention in a timely filed motion. If Defendant genuinely believed his allegation regarding his counsel's ineffective assistance had any merit, he was legally required to timely raise those allegations and not wait over 15 years, after he had fully completed his sentence, to attempt to do so. Any attempt to raise these allegations at this late juncture is procedurally barred.
13. It is also noted that Defendant's ineffective assistance of counsel contention is wholly conclusory in nature. Defendant fails to provide any factual or legal basis to support his contention. Conclusory and unsubstantiated allegations are insufficient to establish a claim of ineffective assistance of counsel.
State v. Brown, 2004 WL 74506, at *2 (Del.Super. 2004).
14. 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. It is clear from Defendant's motion that Defendant's claims do not meet the high standard that the fundamental fairness exception requires. The Court does not find that the interests of justice require it to consider these otherwise procedurally barred claims for relief.
Younger v. State, 580 A.2d 552, 555 (Del. 1990).
Id.
15. Third, even if Defendant contends that he was not aware that his past criminal record could be used against him to enhance a subsequent sentence until the federal court in Maryland did so, and that this new awareness somehow rises to the level of constituting something new or recently discovered, Defendant was required to have raised this issue in a postconviction relief motion within one year of his revelation. Defendant, who advises that he was sentenced in the federal court in Maryland on December 19, 2007, waited well over two years to raise this issue. Defendant has failed to provide any basis for his delay and, consequently, even if his "new" revelation had any merit, it is now time barred.
See, Super.Ct.Crim.R. 61(i)(1).
16. Finally, Defendant's motion should also be dismissed on the separate and independent basis that it lacks merit. A defendant may not challenge a prior conviction based on a guilty plea years after sentencing simply because the conviction will potentially enhance his penalty for a subsequent offense. As a matter of common sense, a defendant should know, and need not be told, that his criminal history will stay with him and remain a part of his permanent record.
State v. Dibrigida, 1999 WL 1222789, at *2 (Del.Super.) (the Court can find no authority to indicate that it has a duty to inform a defendant of the sentencing consequences of a crime that the defendant has not yet committed and, therefore, defendant's argument that he was not informed that a subsequent conviction could subject him to enhanced penalties is not a sufficient basis to challenge a prior conviction.); See also, C.N.V. v. State, 2000 WL 3320090, at *6-7 (Del.Fam.Ct. 2000)("manifest injustice" is not established by a defendant seeking to withdraw his guilty plea because the conviction will potentially enhance his penalty for a subsequent offense); Kipp v. State, 704 A.2d 839, 842 (Del. 1998) (a defendant must understand the consequences of pleading guilty, but this does not include informing him of collateral civil or criminal consequences of the plea.).
17. There is no duty to inform a defendant of the sentencing consequences of a crime that the defendant has not yet committed. A defendant does not have to be informed of the contingent or collateral subsequent federal consequences of his plea. "Manifest injustice" is not established by a defendant seeking to withdraw his guilty plea because the conviction will potentially enhance his penalty for a subsequent offense in a different court in a different state.
Id.
Id.
For all of the foregoing reasons, Defendant's Motion for Postconviction Relief should be denied.
IT IS SO RECOMMENDED.