Opinion
ID No. 0104000979.
Date Submitted: February 23, 2009.
April 14, 2009.
Lester J. Hickman, James T. Vaughn Correctional Center, Smyrna, DE.
James E. Liguori, Esquire, Liguori, Morris Yiengst, Dover, DE.
Adam D. Gelof, Esquire, Department of Justice, Georgetown, DE.
Dear Counsel and Mr. Hickman:
I have revised the above-reference memorandum opinion to make it clear what the practice is in Sussex County regarding the waiver of a preliminary hearing.
Very truly yours,
Dear Mr. Hickman:
This is my decision on your fourth motion for postconviction relief. The State of Delaware charged you by information with Trafficking in Cocaine, Possession with the Intent to Deliver Cocaine, Maintaining a Dwelling for Keeping Controlled Substances, Conspiracy in the Second Degree, Possession of Cocaine, and Possession of Drug Paraphernalia on May 2, 2001. You were convicted of Trafficking in Cocaine, Possession with the Intent to Deliver Cocaine, Maintaining a Dwelling for Keeping Controlled Substances, and Possession of Drug Paraphernalia on August 30, 2001. The Supreme Court affirmed your convictions on June 7, 2002.
Hickman v. State, 801 A.2d 10, 2002 WL 1272154 (Del. June 7, 2002)(TABLE).
You now argue, almost eight years after the information was filed against you, that the Superior Court lacked jurisdiction over you because you allegedly did not waive your right to (1) a preliminary hearing, and (2) be prosecuted by indictment. You were represented at trial by James E. Liguori, Esquire. The State was represented by Deputy Attorney General Adam D. Gelof, Esquire. Liguori and Gelof submitted affidavits in response to your allegations. Given that your argument is not supported by the available records, I have concluded that there is no need to have an evidentiary hearing.
Your argument that the Superior Court did not have jurisdiction over you is procedurally barred. You should have raised it before trial and on your direct appeal. You did not do either. Moreover, you also have not shown cause for relief from this procedural bar or prejudice from this alleged violation of your rights. Therefore, your argument is barred.
Superior Court Criminal Rule 61(i)(3).
Id.
Moreover, there is no merit to your argument. In general, offenses within the exclusive jurisdiction of the Superior Court must be prosecuted by indictment. However, offenses other than capital crimes may be prosecuted by information if the defendant waives his right to be prosecuted by indictment. The waiver may either be in writing or in open court. The purpose of a preliminary hearing is to determine if there is probable cause to arrest a defendant. Not having a preliminary hearing is not a jurisdictional issue. Since this is not a jurisdictional issue, your argument is without merit.
Superior Court Criminal Rule 7(a).
Superior Court Criminal Rule 7(b).
Id.
State v. Bailey, 2004 WL 2914320 (Del.Super. Dec. 13, 2004).
State v. Lum, 2007 WL 1041415, at *6 (Del.Super. March 22, 2007), aff'd, 941 A.2d 1018, 2007 WL 4442633 (Del. Dec. 20, 2007)(TABLE).
Your argument is also not supported by the facts. Gelof and Liguori both stated in their affidavits that you waived your right to a preliminary hearing and to be prosecuted by indictment. The record shows that you did waive your preliminary hearing in the Court of Common Pleas on April 12, 2001. The record contains the probable cause sheet from the Court of Common Pleas. The probable cause sheet states, "Liguori, atty waived." The longstanding practice in Sussex County is for a defendant to waive both (1) his right to a preliminary hearing, and (2) his right to be prosecuted by indictment in exchange for a copy of the police report. Since the defendant has waived his right to be prosecuted by indictment as part of this exchange, the State may then proceed by information. That is exactly what happened here.
See Exhibit A.
In re Miller, 1995 WL 656783, at *2 (Del.Super. Oct. 11, 1995).
CONCLUSION.
Your fourth motion for postconviction relief is DENIED. IT IS SO ORDERED.
Very truly yours,