Opinion
Cr.A. No. 1N99031333R1
Date submitted: December 28, 2000.
Date decided: January 10, 2001.
Upon Defendant's Motion for Postconviction Relief: DENIED.
ORDER
Upon review of Movant Euvie J. Johnson ("Defendant")'s Motion for Postconviction Relief and the record, it appears to the Court:
1) On April 28, 1999, Defendant plead guilty to Escape After Conviction and was sentenced to Level V for two (2) years, suspended after 90 days for twenty-one (21) months at Level III. Defendant was also sentenced on that date for a violation of his probation to Level V for one (1) year, suspended for one (1) year at Level III. On December 14, 2000, Defendant filed this pro se motion for postconviction relief pursuant to Superior Court Criminal Rule 61.
On December 19, 2000 five days after filing this motion motion, Defendant had a Fast Track Contested Violation of Probation hearing at which time Defendant's probation was revoked and he was sentenced for Resisting Arrest, Criminal Impersonation, Criniminal Mischief, Offensive Touching and Violation of Probation.
2) It is unclear from Defendant's motion which conviction he is attacking. The motion states that he is attacking an April 12, 1999 sentence for Escape After Conviction, however, Defendant's grounds for his claim involve a January 5, 1999 sentence in which Defendant states that he was to be held at Level III until space was available in the home confinement program but was incorrectly sent to Plummer Center by a corrections officer on January 13, 1999. Defendant argues that a public defender and private counsel advised Defendant that he had "no rights" and because he was housed in the prison gym, he was unable to file any motions.
The Court will assume Defendant is referring to the April 28, 1999 sentence for Escape After Conviction.
3) When considering a motion for postconviction relief, this Court must apply the procedural requirements before considering the merits of the claim. This Court ordinarily should not consider the merits of postconviction claims where a procedural bar exists.
Younger v. State, Del. Supr., 580 A.2d 552, 553 (1990), citing Harris v. Reed, 489 U.S. 255, 265 (1989); State v. Flowers, Del. Super., C.A. No. 930020980D1, Barron, J., (Nov. 6, 1995).
Younger, 580 A.2d at 554.
4) This Court will not address Rule 61 claims that are conclusory and unsubstantiated. Pursuant to Rule 61(a), a motion for post conviction relief must be based on "a sufficient factual and legal basis." In addition, pursuant to Rule 61(b)(3), "[a] motion shall be limited to the assertion of a claim for relief against one judgment of conviction or, if judgments of conviction were entered on more than one offense at trial, against multiple judgments entered at the same time. Judgments entered at different times shall not be challenged in one motion but only by separate motions."
See Younger, 580 A.2d at 555; State v. Conlow, Del. Super., Cr.A. No. 1N78-09-0985R1, Herlihy, J. (Oct. 5, 1990) at 5; State v. Gallo, Del. Super., Cr.A. No. 1N87-03-0589-0594, Gebelein, J. (Sept. 2, 1988) at 10.
5) Accordingly, the Court finds that Defendant's claims are procedurally barred because Defendant is challenging judgments entered at different times. Furthermore, even if the Court could determine which sentence Defendant was attacking, Defendant fails to provide the Court with any facts or references to substantiate the allegations. This Court, therefore, denies this petition for relief
Based upon the foregoing, Euvie J. Johnson's Motion for Postconviction Relief is DENIED.
IT IS SO ORDERED.