Opinion
Cr. ID. No. 93003649DI.
Submitted: May 20, 2009.
Decided: June 24, 2009.
COMMISSIONER'S REPORT AND RECOMMENDATION THAT DEFENDANT'S SECOND MOTION FOR POSTCONVICTION RELIEF SHOULD BE SUMMARILY DISMISSED.
Annemarie Hayes, Esquire, Deputy Attorney General, Department of Justice, Wilmington, Delaware, Attorney for the State.
Arturo Laboy, James T. Vaughn Correctional Center, Smyrna, Delaware, pro se.
This 24th day of June, 2009, upon consideration of Defendant's Second Motion for Postconviction Relief, it appears to the Court that:
1. Defendant Arturo Laboy was charged in an April 1993 indictment with attempted murder first degree, assault second degree, burglary second degree, two related weapons offenses, stalking and terroristic threatening.
2. The charges stemmed from Defendant's conduct towards Gloria Soto, a 19 year old woman at the time. After Ms. Soto left the Defendant and took their children, Defendant began stalking her. He terrorized her with threats of death and violence and followed up on those threats. On two occasions, he stabbed her with a knife. The first time he attempted to slash her throat but slashed her forehead instead. The second time, while he was on bail status, released from incarceration, he confronted her in a store and stabbed her through the chest.
3. Prior to the trial, the State offered Defendant a plea bargain: If he plead guilty to attempted murder first degree, the State would recommend that he receive a 25 year minimum mandatory sentence. Defendant rejected the offer.
4. After a three day jury trial in Superior Court, in February 1994, Defendant was found guilty of all of the indicted offenses except the burglary second degree and the attempted murder first degree. The jury also found Defendant guilty of assault first degree, a lesser included offense of attempted murder second degree. The State recommended a 50 year sentence. The Superior Court sentenced Defendant to a total of 41½ years at Level V, one year at Level III, and one and one-half years at Level II.
5. Defendant's sentence was under the statutory maximum (62 years), although his 41½ year sentence at Level V exceeded guidelines established by the Delaware Sentencing Accountability Commission ("SENTAC").
6. Defendant's convictions and sentences were affirmed by the Delaware Supreme on direct appeal.
Laboy v. State, 1995 WL 389720 (Del. 1995).
7. In affirming Defendant's sentence, the Delaware Supreme Court recognized that the trial judge relied on a clear delineation of factors in imposing Defendant's sentence.The trial court noted that the Defendant terrorized the victim with threats of death and violence and followed those threats up with despicable acts of cruelty, maiming Ms. Soto and nearly killing her. The trial court expressly found the aggravating factors in this case included extreme cruelty, the need for correctional treatment, undue depreciation of the offense, prior abuse of the victim, custodial status at the time of the offense, and vulnerability of the victim.
Laboy v. State, 1995 WL 389720, *1-2 (Del. 1995).
Laboy v. State, May 13, 1994 Sentencing Transcript pgs. 9-11.
8. In August 1994, Defendant filed a motion for reduction of sentence, which was denied. On June 23, 1995, upon Defendant's direct appeal to the Delaware Supreme Court, the Court affirmed finding no error of law or abuse of discretion in the trial court's sentencing.
Laboy v. State, 1995 WL 389720 (Del. 1995).
9. On February 26, 2001, some six and one half years later, Defendant filed his second Motion for Reduction of Sentence on the ground that the sentence was excessive because it was eighteen years greater than the twenty five year plea offered by the State. The Prothonotary's Office inadvertently forwarded a courtesy copy of Defendant's motion to Judge Norman A. Barron for judicial review. Judge Barron was within days of retiring from the Court at that time. Judge Barron was the judge who had presided over Defendant's original trial and who sentenced the Defendant. By Order dated February 27, 2001, Judge Baron granted the motion in part, reducing the sentence imposed on one of his weapons convictions from twenty years to five years at Level V. The Order reducing Defendant's sentence was entered by a retiring judge, after the case had already been reassigned to a new judge.
10. Three days later, on March 2, 2001, another Superior Court judge, Judge Peggy L. Ableman, to whom this case had been assigned due to the retirement of the original trial judge, received the original of Defendant's motion and denied the motion as untimely. The Court also found a lack of extraordinary circumstances in support of ameliorating the time-bar requirement.
11. The State subsequently moved to vacate the Superior Court's February 27, 2001 Order reducing Defendant's sentence. On March 21, 2001, the Superior Court granted the motion to vacate and specifically reaffirmed its March 2, 2001 Order. Defendant did not appeal the Superior Court's March 21, 2001 Order.
12. In 2002, Defendant filed a petition for a writ of habeas corpus challenging the March 21, 2001 Order, which the Superior Court summarily dismissed.
13. In 2003, Defendant filed a motion for postconviction relief again challenging the March 21, 2001 Order. The Superior Court after a thorough analysis of the contentions Defendant raised denied the motion. The Delaware Supreme Court dismissed Defendant's appeal.
State v. Laboy, 2003 WL 21517974 (Del.Super.).
State v. Laboy, 2003 WL 22457072 (Del.Supr.).
14. In September 2004, Defendant filed a motion for correction of sentence, pursuant to Superior Court Criminal Rule 35(a). In denying the motion, by Order dated October 12, 2004, the Superior Court advised Defendant that filing duplicative motions under Rule 35 and/or Rule 61 will not change the Court's prior Order denying his request for a reduction of sentence.
15. Likewise, in affirming the Superior Court's denial of Defendant's latest attempt for a sentence reduction, the Delaware Supreme Court held: "The record reflects that this claim was fully litigated in the proceedings on Laboy's postconviction motion. The disposition of that motion became the law of the case. Laboy may not now invoke Rule 35(a) in an attempt to re-litigate his claim."
Laboy v. State, 2005 WL 850426 (Del.Supr.).
16. Despite the Supreme Court's admonishment that Defendant's claim seeking a sentence reduction had already been fully litigated, on April 30, 2009, Defendant filed the subject motion for postconviction relief in which he, yet again, seeks to address his request for sentence reduction. This time, Defendant shifts his focus and instead of attacking the Court's actions in denying his request for a sentence reduction the Defendant now seeks to attack the Court's motivation for those actions. This time, Defendant alleges that the Court was biased and lacked impartiality in deciding Defendant's request for a sentence reduction. Essentially, Defendant is restating and refining his claim. All of the grounds which Defendant now raises in the subject motion as giving rise to his contention that the Court was allegedly biased when deciding his request for a sentence reduction, and subsequent appeals to that denial, were known to Defendant at the time he originally made the request for the sentence reduction and were known to him at the time he filed his first motion for postconviction relief and all subsequent appeals. He raises nothing new or recently discovered.
17. Before addressing the substantive merits of any claim for postconviction relief, the Court must determine whether the defendant has satisfied the procedural requirements of Superior Court Criminal Rule 61. In order to protect the procedural integrity of Delaware's rules, the Court will not consider the merits of a postconviction claim that fails any of Rule 61's procedural requirements. If it plainly appears from the motion for postconviction relief and the record of prior proceedings in the case 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.
Bailey v. State, 588 A.2d 1121, 1127 (Del. 1991); Younger v. State, 580 A.2d 552, 554 (Del. 1990).
Super.Ct.Crim.R. 61(d)(4).
18. Rule 61 (i) imposes four procedural imperatives: (1) the motion must be filed within three years of a final order of conviction; (2) any basis for relief must have been asserted previously in a prior postconviction proceeding; (3) any basis for relief must have been asserted at trial or on direct appeal as required by the court rules unless the movant shows prejudice to his rights or cause for relief; and (4) any basis for relief must not have been formally adjudicated in any proceeding. The bars to relief under (1), (2), and (3), however, do not apply to a claim that the court lacked jurisdiction or to 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. Moreover, the procedural bars of (2) and (4) may be overcome if "reconsideration of the claim is warranted in the interest of justice."
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).
Super.Ct.Crim.R. 61(i)(5).
Super. Ct. Crim.R. 61 (i)(4).
19. In this case, Defendant's motion for postconviction relief is procedurally barred. Rule 61(i)(1) applies because Defendant filed this motion more than three years after his conviction became final. Defendant's final order of conviction was in 1995. This motion, filed on April 30, 2009, approximately 14 years later, is clearly outside the applicable three year limit.
20. In addition to being time-barred, Rule 61(i)(4) also precludes this Court's consideration of the subject motion because the issue concerning Defendant's entitlement to a sentence reduction has already been fully litigated. Indeed, the Delaware Supreme Court already recognized that the claim was fully litigated in Defendant's first motion for postconviction relief and that Defendant cannot now couch his request differently in an attempt to re-litigate his claim. The Superior Court is not required to re-examine a claim that has received "substantive resolution" at an earlier time simply because the claim is now refined or restated.
Laboy v. State, 2005 WL 850426, *1 (Del.Supr.)
Johnson v. State, 1992 WL 183069, *1 (Del.Supr.).
21. Rules 61(i)(2) and (3) would also prevent this Court from considering any additional arguments or efforts to support Defendant's contentions related to his request for a sentence reduction. Defendant had time and opportunity to raise any fact, argument, or issue in his prior pleadings, and either did so, or neglected to do so. Indeed, all the contentions that Defendant presently raises as to the Superior Court judge's bias and lack of impartiality where known to Defendant at the time of his first motion for postconviction relief. If he truly believed that his contentions had any merit, there was no reason for his failure to include those contentions in his first motion. Having already been provided with an opportunity to present any grounds desired to be raised, any attempt at this late juncture to raise anything new related to this issue is barred. Since Defendant's claims are procedurally barred, Defendant must meet one of the exceptions to overcome the bars to relief.
22. In this case, 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. 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.
Id.
For all of the foregoing reasons, Defendant's Second Motion for Postconviction Relief should be denied.
IT IS SO RECOMMENDED.