Opinion
ID. No. 0008007257
Submitted: January 9, 2003
Decided: March 6, 2003
Upon Consideration of Defendant's Motion For Postconviction Relief Pursuant to Superior Court Criminal Rule 61
DENIED
IK00-08-0664 — R1
Jason Cohee, Esq., Dover, Delaware. Attorney for State.
Brian A. Ingram, Pro se.
ORDER
Upon consideration of defendant's Motion for Postconviction Relief, the Commissioner's Report and Recommendation, and the record in this case, it appears:
1. The defendant pled guilty on January 11, 2001 to Unlawful Sexual Contact in the Third Degree, 11 Del. C. § 767 and was sentenced to one year at Level V suspended for one year at Level II. Between November 30, 2001 and September 20, 2002 the defendant was found guilty of violation of probation and sentenced five times. On the final violation he received five months at Level V with no probation to follow.
2. The defendant failed to appeal his conviction or sentence, on the original charge or any of the subsequent violations, to the Delaware Supreme Court. The defendant filed a motion for modification of sentence and a writ of habeas corpus which were both denied by this Court. Next, the defendant filed the pending motion for postconviction relief and raises the following grounds for relief: 1) Violation of the 5th and 14th Amendments of the State and U.S. Constitution; and 2) Violation of the 6th and 8th Amendments of the State of U.S. Constitution.
3. The Motion for Postconviction Relief was referred to the Court Commissioner Andrea M. Freud for proposed findings and recommendation pursuant to 10 Del. C. § 512(b) and Superior Court Criminal Rule 62.
4. The Commissioner determined that because the defendant failed to raise any of these grounds at his sentencing, on direct appeal to the Delaware Supreme Court, or any of his five violation hearings, that his claims are all barred by Rule 61(i)(3). She recommended that the Court deny the defendant's motion as procedurally barred.
5. A copy of the Commissioner's report dated December 20, 2002 is attached hereto. The defendant did not file an Appeal from the Commissioner's Report and Recommendation.
NOW, THEREFORE, IT IS ORDERED that:
a. Having conducted a de novo review of the proceedings I adopt the well-reasoned Commissioner's Report and Recommendation;
b. The defendant's Motion for Postconviction Relief is denied.
COMMISSIONER'S REPORT AND RECOMMENDATIONS
Upon Defendant's Motion For Postconviction Relief Pursuant to Superior Court Criminal Rule 61
FREUD, Commissioner
December 20, 2002
On January 11, 2001, Defendant Brian A. Ingram ("Ingram") pled guilty to one count of Unlawful Sexual Contact in the Third Degree, 11 Del. C. § 767. Ingram was sentenced to one year of incarceration at Level V suspended for one year at Level II.
Subsequently Ingram was found guilty of violating his probation on November 30, 2001 and sentenced to one year at Level V suspended for one year at Level III. On May 24, 2002, Ingram again was found guilty of violating his probation and sentenced to one year at Level V to commence on July 26, 2002, if Ingram did not State v. Ingram ID No. 0008007257 December 20, 2002 complete the sex offender program. On August 2, 2002 a third violation of probation hearing was held and Ingram was sentenced to one year at Level V suspended after 30 days for eight months at Level IV home confinement. Finally, a fifth violation of probation hearing was held on September 30, 2002 and Ingram was sentenced to five months at Level V with no probation to follow.
Ingram did not appeal his conviction or sentence on either the underlying charge or any of the five violation of probations to the Delaware Supreme Court. Ingram did file a motion to modify his sentence which was denied and a motion for habeas corpus which was likewise denied. Finally Ingram filed the pending motion for postconviction relief pursuant to Superior Court Criminal Rule 61.
In his motion Ingram raises the following two grounds for relief:
Ground one: Violation of the 5th and 14th Amendments of the State and U.S. Constitution.
Ground two: Violation of the 6th and 8th Amendments of the State and U.S. Constitution.
Under Delaware law the Court must consider the procedural requirements of Superior Court Criminal Rule 61(i) before addressing the merits of any postconviction relief claim. Ingram failed to raise any of the issues pending at the hearing on the violation of probation, at his sentencing or on direct appeal to the Supreme Court. His claims are therefore barred by Rule 61(i)(3) absent a demonstration of both cause and prejudice.
Ingram has failed to allege cause or prejudice for his failure to have raised these issues sooner and they are therefore barred by Rule 61(i)(3) absent a jurisdictional challenge or a colorable claim of miscarriage of justice stemming from a constitution violation that "undermines the fundamental legality, reliability, integrity or fairness of the proceedings leading to the judgment of conviction." Ingram has not made any meritorious attempt to allege any such violations and as such these claims should be procedurally barred.
Super.Ct.Crim.R. 61(i)(5).
I therefore recommend the Court deny Ingram's motion as procedurally barred by Rule 61(i)(3).