Opinion
IK98-04-0169-R1
Decided: September 30, 2000
Upon Defendant's Motion For Postconviction Relief Pursuant to Superior Court Criminal Rule 61
Dennis Kelleher, Esq., Deputy Attorney General, Dover, Delaware, for the State of Delaware.
Jesse Sturgis, pro se.
ORDER
On this 30th day of October, 2000, upon consideration of the Defendant's Motion for Postconviction Relief, the Commissioner's Report and Recommendation, and the record in this case, it appears that:
(1) The defendant, Jesse Sturgis pled guilty to one count of Vehicular Assault in the Second Degree, 11 Del. C. § 628(2) on August 25, 1998. On December 4, 1998, after a Presentence Office investigation, the defendant was sentenced to six months of incarceration at Level V suspended for three months at Level IV Home Confinement to be held at Level III, followed by three months at Level III with credit for time served.
(2) Subsequently, the defendant was found guilty of violating his probation on January 20, 1999 and sentenced to six months at Level V suspended after serving 30 days for three months at Level IV Home Confinement or Work Release, followed by three month Level III Day Reporting to be held at Level V pending the availability of Level IV. He was given credit for time served. On September 10, 1999, the defendant was against found guilty of violating his probation. This time he was sentenced to six months at Level V with credit for time served suspended after serving 60 days for six months at Level IV.
(3) The defendant did not appeal his conviction or sentence on either the underlying charge or the two violations of probation to the Delaware Supreme Court, instead he filed the pending motion for postconviction relief pursuant to Superior Court Criminal Rule 61.
(4) The matter was referred to the Court Commissioner for findings of fact and recommendation pursuant to 10 Del. C. § 512(b) and Superior Court Civil Rule 132. The Commissioner has filed a Report and Recommendation recommending that the Court deny defendant's motion for postconviction relief. No objections to the Report have been filed.
NOW, THEREFORE, after careful and de novo review of the record in this action, and for the reasons stated in the Commissioner's Report and Recommendation dated September 29, 2000,
IT IS ORDERED that the well-reasoned Commissioner's Report and Recommendation is adopted by the Court and defendant's Motion for Postconviction Relief is denied .
COMMISSIONER'S REPORT AND RECOMMENDATIONS
On August 25, 1998, Defendant Jesse Sturgis ("Sturgis") pled guilty to one count of Vehicular Assault in the Second Degree, 11 Del. C. § 628(2). The State and the defense requested a Presentence office investigation. On December 4, 1998 Sturgis was sentenced to six months of incarceration at Level V suspended for three months at Level IV Home Confinement to be held at Level III, followed by three months at Level III with credit for time served.
Subsequently Sturgis was found guilty of violating his probation on January 20, 1999 and sentenced to six months at Level V suspended after serving 30 days for three months at Level IV Home Confinement or Work Release, followed by three months Level III Day Reporting to be held at Level V pending the availability of Level IV. He was given credit for time served. On September 10, 1999 Sturgis again was found guilty of violating his probation. This time he was sentenced to six months at Level V with credit for time served suspended after serving 60 days for six months at Level IV.
Sturgis did not appeal his conviction or sentence on either the underlying charge or the two violation of probations to the Delaware Supreme Court, instead he filed the pending motion for postconviction relief pursuant to Superior Court Criminal Rule 61.
In his motion Sturgis raises the following two grounds for relief:
Ground one: Double jeopardy by the Courts
Ground two: Illegal detention by Superior Court
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. Sturgis 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.
Sturgis 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." Sturgis has made no 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 Sturgis' motion as procedurally barred by Rule 61(i)(3).