Opinion
Crim. ID 0501014814.
Decided: June 27, 2007.
Upon Defendant's Motion for Modification of Sentence.
Summarily Dismissed.ORDER
This 27th day of June, 2007, upon consideration of Defendant's motion for postconviction relief, it appears to the Court that:
1. Defendant Gregory D. Jones ("Defendant") was sentenced on March 10, 2006, after pleading guilty to one count of Forgery First Degree and one count of Conspiracy Second Degree. On the Forgery First Degree charge, Defendant was sentenced to two (2) years at Level V, suspended after one (1) year for one (1) year Level IV Halfway House, suspended after six (6) months for six (6) months Level III probation to run concurrently with any probation Defendant was serving at that time. On the Conspiracy Second Degree charge, Defendant was sentenced to two (2) years at Level V, suspended eighteen (18) months at Level III, with a $500 fine. The Plea Agreement and the Truth-in-Sentencing guilty Plea Form were signed by Defendant.
IN05-02-0095, Sentencing Order, Docket Item ("D.I.") 21.
IN05-02-0099, Sentencing Order, D.I. 21.
D.I. 11.
2. Defendant filed this motion for postconviction relief on April 16, 2007, under Superior Court Criminal Rule 61 ("Rule 61"). Defendant states three grounds for relief, reproduced in toto:
1. Abuse of discrection [sic] by sentencing the appellant to 5yrs L-5 for 1st violation without citing any of the six specific aggravating circumstances which would necessisitate [sic] deviation from sentence presumtious) [sic] see back page [on back of page] Ground 1 and [sic] support such a harsh sentence for 1st violation.
2. Ineffective assistance of counsel. His representation was below the bar of legal representation.
3. Cruel and unusual punishment by sentencing outside the guidlines [sic] out of frustration and malice.
His reason for not raising these grounds previously is "I didn't know. Also I didn't have the proper legal assistance." Grounds two and three are unsubstantiated and conclusory statements failing to provide a legal and factual basis for the Court to consider as required by Rule 61(a)(1), and are therefore SUMMARILY DISMISSED.
Id.
3. When analyzing any Rule 61 motion, the first step a court should take is to examine if the motion satisfies all the procedural requirements before contemplating the substantive merits. Rule 61(i)(1) states that, absent special circumstances not alleged by Defendant in this case, "[a] motion for postconviction relief may not be filed more than one year after the judgment of conviction is final . . ." Under Rule 61(m)(1), a conviction is final for the purpose of this rule thirty days after sentencing, unless a direct appeal is filed in that time frame.
See, e.g., Bailey v. State, 588 A.2d 1121, 1127 (Del. 1990) ("The first inquiry in any analysis of a post-conviction relief claim is whether the petition meets the procedural requirements of Rule 61.")
4. Defendant was sentenced on March 10, 2006. Defendant failed to file a direct appeal, and his conviction became final on April 9, 2006, thirty days after sentencing. Defendant filed this motion on April 16, 2007. He missed his filing deadline by one week. Unless Defendant shows that his motion should circumvent the time bar via Rule 61(i)(5), his motion should be summarily dismissed as untimely. 5. Rule 61(i)(5) allows a motion to escape the procedural imperatives of Rule 61(i)(1),(2), and (3) if the sentencing court lacked jurisdiction or the defendant presents "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" (emphasis added).
Sentence Order, D.I. 21.
6. Here, Defendant does not make a qualifying claim. His single ground remaining to consider attacks not the proceedings leading to a conviction, but rather the sentence which followed conviction. Rule 61 is designed to allow prisoners to attack the validity of their conviction; Rule 35 is for sentence modification. Defendant's motion attacks his sentence, rather than his conviction and therefore his motion does not fit the exceptions afforded under Rule 61(i)(5). His motion is time barred and SUMMARILY DISMISSED.