Opinion
I.D. Nos. 30209462DI, 9908025423, Cr. A. No. VN94-03-1312., VN99-09-0642.
Submitted: December 10, 2003.
Decided: January 29, 2004.
Upon Defendant's Pro Se Motion for Postconviction Relief:
DENIED.
ORDER
This 29th day of January, 2004, upon consideration of the defendant's Motion for Postconviction Relief pursuant to Superior Court Criminal Procedure Rule 61, it appears to this Court that:
1. On January 19, 1993, the movant, David L. Mayfield ("Defendant"), was indicted by a Grand Jury and charged with three counts of Unlawful Sexual Contact Second Degree in violation of 11 Del. C. § 768, Unlawful Sexual Intercourse First Degree in violation of 11 Del. C. § 775, Sexual Harassment in violation of 11 Del. C. § 763, Attempted Unlawful Sexual Contact Second Degree in violation of 11 Del. C. § 531, Criminal Solicitation First Degree in violation of 11 Del. C. § 503, and Harassment in violation of 11 Del. C. § 1311 (Cr.A. No. VN94-03-1312). Defendant entered into a plea agreement on January 29, 1996, whereby, in exchange for all of the remaining charges against him being nolle prossed by the State, Defendant plead guilty to the lesser included offense of Unlawful Sexual Intercourse Third Degree and to Sexual Harassment. The Court sentenced Defendant on March 29, 1996 to eight years incarceration at Level V, suspended for eight years at Level IV Home Confinement; after serving nine months at Level IV, the remainder of the sentence was suspended for seven years and three months at Level III probation. In addition, Defendant agreed to: 1) have no contact with the victims; 2) have no unsupervised contact with children eighteen years or younger; 3) have no involvement in any type of organization involving children, either as an employee or as a volunteer; 4) undergo substance abuse evaluation and treatment; and 5) to undergo psychological evaluation and treatment.
2. Subsequently, Defendant was adjudged guilty of violating his probation on September 21, 1999 (Cr. A. No. VN99-09-0642, Possession of Cocaine), on June 28, 2001, and on October 1, 2002. On October 1, 2002, the Superior Court issued a Violation of Probation Sentence Order sentencing Defendant to six years at Level V, suspended after serving three years at Level V for three years at Level IV Plummer Center, suspended after serving six months at Level IV for the balance at Level III probation. In addition, the Court found Defendant in violation of his probation of Cr. A. No. VN99-09-0642 and sentenced him to one year and nine months at Level V, suspended after serving one year at Level V for nine months at Level III.
3. On October 30, 2002, Defendant filed a Notice of Appeal to the Delaware Supreme Court from this Court's Order revoking his probation and reimposing the original sentencing terms of his criminal convictions. Subsequently, Defendant's counsel filed a motion to withdraw as counsel representing that there were no arguable issues to support Defendant's appeal. In his appeal, Defendant asserted that: 1) his probation officer was prejudiced against him and testified falsely against him at the violation of probation hearing; 2) a different judge should have presided at the violation of probation hearing; and 3) his violation of probation sentence was too harsh. On March 28, 2003, the Supreme Court affirmed the Court's October 1, 2002 Violation of Probation Sentence Order holding that Defendant's appeal was "wholly without merit and devoid of any arguably appealable issue."
Mayfield v. State, 2003 WL 1711946, at *2 (Del.).
4. While his appeal was pending, Defendant filed a Motion for Modification of Sentence on March 24, 2003. The Court denied Defendant's motion on April 4, 2003 because it was filed more than ninety days after imposition of the sentence and the Court did not find the existence of any extraordinary circumstances. The sentence was imposed after the violation of probation hearing because the Defendant had violated the terms of his probation. On April 14, 2003, ten days after the Court denied Defendant's motion for modification of his sentence, he filed a second motion for modification of his sentence imposed as a result of his probation violation. On April 29, 2003, the Court denied this second motion for the same reasons the Court had denied Defendant's first motion. The Court also informed Defendant that, pursuant to Superior Court Criminal Rule 35(B), the Court would not consider repetitive requests for reduction or modification of sentence. In defiance of the April 29, 2003 Order, Defendant filed a third motion for modification of sentence on May 29, 2003. The Court denied the motion on June 12, 2003 for the same reasons that it denied the previous two motions.
5. On April 17, 2003, three days after he filed his second motion for modification of sentence, Defendant filed a Motion for Postconviction Relief pursuant to Superior Court Criminal Rule 61. Defendant asserted four grounds for relief in support of the motion. Defendant claimed ineffective assistance of counsel as grounds one and two, arguing that, "[c]ounsel was ineffective in his failure to provide petitioner with an understanding of the law in relation to the facts and to advise him meaningfully of his options," and that "[c]ounsel was ineffective in not explaining prior to the elements required to be established for crime charged." Next, Defendant averred that an improper colloquy transpired at the hearing where he entered his guilty plea. Specifically, "[t]he court accepted plea of guilty without making inquiry as to the acceptance of guilt of the Defendant understanding of the nature of charges." Finally, as his fourth ground for relief, Defendant asserted the existence of an "unfulfilled agreement" because, "[d]efense counsel and probation officer led defendant to believe that he would be receiving a sentence for violation of probation within the T.I.S. guidelines." On June 2, 2003, the Court denied Defendant's Rule 61 motion on procedural and substantive grounds.
Defendant's [First] Motion for Rule 61 Postconviction Relief, at 3 (hereinafter "Def. [First] Mot. at ___.").
Def. [First] Mot. at 3.
Def. [First] Mot. at 4.
6. Defendant filed this second pro se motion for postconviction relief on December 2, 2003, wherein he seeks to set aside a judgment of criminal conviction based on violations of his constitutional rights under the United States Constitution and the Delaware Constitution. Defendant asserts three grounds for relief in support of his contentions that his rights had been violated. As ground one, Defendant asserts a violation of due process rights under the Fourteenth Amendment citing to the "erroneous remarks made by probation officer which was [sic] materially untrue." Defendant claims a "violation of the minimum requirements of due process" as his second ground for relief because "the hearing [V.O.P.] did not comport with the requirements of Rule 32.1 [sic] defendant was not given disclosure of evidence on him." Finally, for his third ground for relief, Defendant avers that there existed an "abuse of discretion by trial judge" at his V.O.P. hearing because "sentencing defendant to 4 years Level 5 as a result of a `close [sic] mind' violates [sic] intent and purpose of Rule 32."
Defendant's [Second] Motion for Rule 61 Postconviction Relief, at 3 (hereinafter "Def. [Second] Mot. at ___.").
Def. [Second] Mot. at 7.
Def. [Second] Mot. at 9.
7. Under Delaware law, when considering a motion for postconviction relief, this Court must first determine whether the defendant has met the procedural requirements of Superior Court Criminal Rule 61(i) before it may consider the merits of defendant's postconviction relief claim. To protect the integrity of the procedural rules, the Court should not consider the merits of a postconviction claim where a procedural bar exists.
Bailey v. State, 588 A.2d 1121, 1127 (Del.Super.Ct. 1991); Younger v. State, 580 A.2d 552, 554 (Del. 1990) (citing Harris v. Reed, 489 U.S. 255, 265 (1989)).
State v. Gattis, 1995 WL 790961, at *3 (Del.Super.Ct.) (citing Younger, 580 A.2d at 554).
8. Upon initial review of Defendant's motion for postconviction relief, the Court finds that Defendant has failed to successfully overcome the procedural hurdles imposed by Rule 61. First, because this postconviction motion was filed almost eight years after the judgment of conviction became final, he is procedurally barred from relief under Rule 61(i)(1). The time bar of Super. Ct. Crim. R. 61(i)(1) provides:
A motion for postconviction relief may not be filed more than three years after the judgment of conviction is final or, if it asserts a retroactively applicable right that is newly recognized after the judgment of conviction is final, more than three years after the right is first recognized by the Supreme Court of Delaware or by the United States Supreme Court.
SUPER. CT. CRIM. R. 61(i)(1).
Since the instant motion was filed more than three years after his conviction became final and Defendant has not asserted a new retroactive rule under any circumstance, his motion is procedurally barred under Rule 61(i)(1).
Within the purview of Rule 61(i)(1), a conviction becomes final for purposes of postconviction review:
(a) for a defendant who takes a direct appeal of the conviction, when the direct appeal process is complete (the date of the issuance of the mandate under Supreme Court Rule 19); or
(b) for a defendant who does not take a direct appeal, when the time for direct appeal has expired (30 days after sentencing); or
(c) if the United States Supreme Court grants certiorari to a defendant from a decision of this Court, when that Court's mandate issues. Jackson v. State, 654 A.2d 829, 833 (Del. 1995).
9. In addition to Defendant's motion being procedurally barred pursuant to 61(i)(1), grounds one and three of the motion are barred under Rule 61(i)(4). Specifically, 61(i)(4) provides that "[a]ny ground for relief that was formerly adjudicated, whether in the proceedings leading to the judgment of conviction, in an appeal, in a postconviction proceeding, or in a federal habeas corpus proceeding, is thereafter barred unless consideration of the claim is warranted in the interest of justice." The "interest of justice exception of Rule 61(i)(4) has `been narrowly defined to require the movant to show that the trial Court lacked the authority to convict or punish [the movant].'"
SUPER. CT. CRIM. R. 61(i)(4).
State v. Wright, 653 A.2d 288, 298 (Del.Super.Ct. 1994) (quoting Flamer v. State, 585 A.2d 736, 746 (Del. 1990)).
Defendant's claim that his probationer officer provided "erroneous" or untrustworthy, inconsistent, testimony at his V.O.P. hearing was previously raised by Defendant in the appeal from this Court's October 1, 2002 violation of probation sentencing. Defendant's claim that the length of the sentence he received at the October 1, 2002 V.O.P. hearing was too harsh or excessive, and therefore, in contradiction to the intent and purpose inherent in Rule 32, was also previously raised in the same appeal. Consequently, these two claims, raised on appeal and rejected by the Delaware Supreme Court, are also barred by Rule 61(i)(4). To revisit them would be a waste of the Court's valuable time and resources. Additionally, the Court finds no "interest of justice" exception to exist to warrant such a review of these claims.
Mayfield, 2003 WL 1711946, at *1.
Id.
10. Defendant's remaining claim, that the V.O.P. hearing did not comport with the requirements of Superior Court Criminal Rule 32.1 because he was not given disclosure of the evidence against him, was not raised in his first Rule 61 motion, or in his appeal to the Delaware Supreme Court, following the October 1, 2002 V.O.P. hearing. Since Defendant failed to raise this claim previously, Rule 61(i) requires that it initially be evaluated under the criterion mandated in Rule 61(i)(2).
Rule 61(i)(2) provides, "[a]ny ground for relief that was not asserted in a prior postconviction proceeding, as required by subdivision (b)(2) of this rule, is thereafter barred, unless consideration of the claim is warranted in the interest of justice." Subdivision (b)(2), in turn, provides, "[t]he motion shall specify all the grounds for relief which are available to the movant and of which the movant has or, by the exercise of reasonable diligence, should have knowledge, and shall set forth in summary form the facts supporting each of the grounds thus specified."
SUPER. CT. CRIM. R. 61(i)(2).
SUPER. CT. CRIM. R. 61(b)(2) (emphasis added).
Defendant's contention, that he was not in receipt of the evidence presented against him at the V.O.P. hearing, directly relates to his being taken into custody for violating his probation and reimposition of his original sentence. Therefore, in conjunction with subdivision (b)(2), Defendant has not presented any reason or justification for not raising this ground at the time he filed his first Rule 61 motion or at the time he filed the subsequent V.O.P. hearing appeal. Since the ground now being asserted by Defendant in his current motion for relief was available to him at the time he filed his first Rule 61 motion, but was not asserted at that time, it is barred by Rule 61(i)(2).
In light of subdivision (i)(2)'s threshold procedural requirements, the Court can not further review this ground for relief, unless consideration of this ground is warranted in the "interest of justice." Delaware law has interpreted the "interest of justice" exception narrowly, only allowing further consideration of the claim to "allege or establish that the Superior Court lacked the authority to convict or punish him." Defendant has not invoked, or submitted for consideration, this aspect of Rule 61 in his present motion. As a consequence, the Court finds that Defendant's claim of a violation of his rights under Rule 32.1 is barred by Rule 61(i)(2).
Maxion v. State, 686 A.2d 148, 150 (Del. 1996) (citing Flamer, 585 A.2d at 746); State v. Kirk, 2001 WL 755942, at *2 (Del.).
Although Defendant's remaining claim is barred under Rule 61(i)(1) and (2), the Court must still consider the "eleventh-hour" procedural safeguard contained in 61(i)(5). The Rule 61 time bar is not an absolute prohibition to post-conviction relief petitions filed three years after conviction. Rule 61(i)(5) may potentially overcome the procedural bars of Rule 61. Rule 61(i)(5) "[i]s a general default provision, and permits a petitioner to seek relief if he or she was otherwise procedurally barred under Rules 61(i)(1)-(3)." Rule 61(i)(5) provides:
Bailey, 588 A.2d at 1125 (citing Boyer v. State, 562 A.2d 1186, 1188 (Del. 1989)).
Bailey, 588 A.2d at 1129.
The bars to relief in paragraphs (1), (2), and (3) of this subdivision shall 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.
SUPER. CT. CRIM. R. 61(i)(5).
The "miscarriage of justice" or "fundamental fairness" exception contained in Rule 61(i)(5) is "[a] narrow one and has been applied only in limited circumstances, such as when the right relied upon has been recognized for the first time after a direct appeal." This exception may also apply to a claim that there has been a mistaken waiver of fundamental constitutional rights, such as a mistaken waiver of rights to trial, counsel, confrontation, the opportunity to present evidence, protection from self-incrimination and appeal. Accordingly, when a petitioner puts forth a colorable claim of mistaken waiver of important constitutional rights, Rule 61(i)(5) is available to him.
Younger, 580 A.2d at 555 (citing Teague v. Lane, 489 U.S. 288, 297-99 (1989)) (emphasis added).
Webster v. State, 604 A.2d 1364, 1366 (Del. 1992).
Id. (citing comparatively Younger v. State, 580 A.2d 552, 555 (Del. 1990)) (denoting that fundamental fairness exception of Rule 61(i)(5) applies where petitioner shows he was deprived of a substantial constitutional right).
Additionally, "[i]n a postconviction proceeding, the petitioner has the burden of proof and must show that he has been deprived of a substantial constitutional right before he is entitled to any relief." In other words, "[t]he petitioner bears the burden of establishing a `colorable claim' of injustice. (citation omitted). While `colorable claim' does not necessarily require a conclusive showing of trial error, mere `speculation' that a different result might have [sic] obtained certainly does not satisfy the requirement." Defendant has made no claim that the court lacked jurisdiction. He therefore has the burden of presenting 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.
Bailey, 588 A.2d at 1130 (citing Younger v. State, 580 A.2d 552, 555 (Del. 1990)) (emphasis added).
State v. Getz, 1994 WL 465543, at *11 (Del.Super.Ct.).
Defendant alleges that the V.O.P. hearing conducted by this Court violated the rights afforded to him by Superior Court Criminal Rule 32.1 and the Due Process Clause of the United States Constitution. In particular, he alleges that he was not given disclosure of the evidence against him. The United States Supreme Court has held that due process does not necessitate that an indigent person be afforded the usual "trial rights" in a probation violation proceeding. Notwithstanding that fact, Defendant was entitled to a V.O.P. hearing that comported with the minimum requirements of due process in adherence to the Due Process Clause of the Fourteenth Amendment and to Superior Court Criminal Rule 32.1.
Perry v. State, 741 A.2d 359, 362 (Del. 1999) (citing Gagnon v. Scarpelli, 411 U.S. 778, 789-90 (1973)).
Perry, 741 A.2d at 362-63.
Upon examination of the V.O.P. hearing transcript, the Court finds that no factual basis exists in the record to support Defendant's claim that the V.O.P. hearing did not comply with the procedural requirements of Rule 32.1. Defendant was charged with a violation of his probation, clearly enumerated in a violation of probation report filed on August 7, 2002. As mandated by Rule 32.1, there was written notice of the allegations in the violation report and disclosure of the evidence against the Defendant. At the hearing, Defendant's attorney stated that he had reviewed the violation of probation report and that he had discussed the alleged violations contained therein with the Defendant. Further, Defendant admitted that he tested positive for cocaine. Defendant testified that he avoided his scheduled meetings with his probation officer because of his "dirty urines" and that he stopped seeing his probation officer because he did not want to take the chance of getting violated. Moreover, Defendant was afforded the opportunity to appear through legal counsel, to confront the witness against him, i.e., his probation officer, and to present evidence on his own behalf. Defendant's allegations contradict the facts derived from the record, are totally without merit, and are a further waste of this Court's time and resources in consideration thereof.
VOP Hearing Transcript, dated October 1, 2002, at 4 (hereinafter "VOP Hr'g Tr. at ___.").
VOP Hr'g Tr. at 4-6.
VOP Hr'g Tr. at 5.
Hence, there was no denial of Defendant's fundamental constitutional rights and his violation of Rule 32.1 claim is without merit. Accordingly, since Defendant failed to establish a violation of his constitutional rights, he has also failed to authenticate a "colorable claim" that there was a "miscarriage of justice" because of a constitutional violation pursuant to Rule 61(i)(5).
11. In conclusion, pursuant to Rule 61(i)(1), Defendant's motion was filed more than three years after the judgment of conviction was finalized, his claims are procedurally barred under 61(i)(2) and (4), and Defendant has failed to demonstrate the existence of a constitutional violation resulting in a "miscarriage of justice" or undermining the "fundamental fairness" of the proceedings pursuant to 61(i)(5). For all the foregoing reasons, Defendant's Motion for Postconviction Relief Pursuant to Superior Court Rule 61 is hereby DENIED.