Opinion
No. ID No. 86001906DI.
Date Submitted: August 8, 2007.
Date Decided: October 23, 2007.
Motion for Transcripts — DENIED.
Mr. Ricky A. Whitfield, Road Smyrna, Delaware.
Dear Mr. Whitfield:
The Court is in receipt of your Motion for Transcripts. The Court DENIES your request for the reasons that follow.
Following your conviction, you were sentenced on January 28, 1987 to life imprisonment for Attempted Murder First Degree, life imprisonment for Kidnapping First Degree, ten years imprisonment for one count of Possession of a Deadly Weapon During Commission of a Felony, three years imprisonment for a second count of Possession of a Deadly Weapon During the Commission of a Felony, and five years imprisonment for Reckless Endangering First Degree.
On November 7, 1986, your attorney filed a motion for a new trial which the Court denied on November 24, 1986. The Delaware Supreme Court affirmed the denial of that new trial motion on September 8, 1988.
Whitfield v. State, Del. Super., ID No. 86001906, Bifferato, V. (Nov. 24, 1986) (Letter Op.), D.I. 11.
Whitfield v. State, Del.Supr., No. 44, 1987, Walsh, J. (September 8, 1988).
On August 24, 1990, you filed your first motion for postconviction relief. This Court denied that motion on November 1, 1990. In December 1993, you requested the appointment of counsel to help you prepare a second petition for postconviction relief. On March 10, 1994, in response to this Court's request, you explained your basis for postconviction relief. Your letter was deemed a motion and it was denied on the merits by this Court on March 24, 1994. The Delaware Supreme Court affirmed on November 7, 1994.
Def. Mot. for Post-conviction Relief, D.I. 27.
State v. Whitfiled, Del. Super., ID No. 86001906, Bifferato, V. (Nov. 1, 1990) (ORDER), D.I. 29.
Letter from Ricky A. Whitfield to Honorable Judge Vincent J. Biefferato (March 10, 1994) (D.I. 36).
State v. Whitfield, Del. Super., ID No. 86001906DI, Bifferato, J. (March 24, 1994) (ORDER).
Whitfield v. State, 659 A.2d 229 (Del. 1994).
You now request the transcript from your Rule 9 summons hearing that was held on April 23, 1986. You claim that you are an indigent, incarcerated pro se defendant, who requires these transcripts to proceed with his postconviction remedies.
See Mot. for Transcripts, Whitfield v. State, No. 86001906DI (Aug. 8, 2007) (D.I. 53).
"There is no blanket constitutional right to a free transcript for the purpose of preparing a post-trial motion." "The Constitution requires that materials such as transcripts are provided only after judicial certification that they are necessary to decide non-frivolous issues in a pending case." Superior Court Criminal Rule 61(d)(3) states: "[t]he judge may order the preparation of a transcript of any part of the prior proceedings in the case needed to determine whether the movant may be entitled to relief." Therefore, "it is within the discretion of the Judge who examines the Motion and contents of the record to determine whether to order preparation of a transcript. . . ."
H State v. Allen, 2002 WL 31814750, at *1 (Del.Super.)H; see e.g. H State v. Quill, 1999 WL 1229313, at *1 (Del.Super.)H.
H State v. Johnson, 1999 WL 1568387, at *1 (Del.Super.)H, citing H State v. Bordley, 1989 WL 135691, at *1 (Del.Super.)H.
H Quill, 1999 WL 1229313, at *1 (Del.Super.)H.
A "criminal defendant who fails to articulate specific allegations of constitutional infirmity is not entitled to a transcript as a matter of right." The decisions of this Court make clear that "when the defendant offers no factual basis and fails to clearly identify any fundamental rights that were violated, the Court will find the defendant's claim `frivolous' and deny the motion."
H State v. Johnson, 1999 WL 1568387, at *1 (Del.Super.)H, citing HMazzatenta v. State, 1991 WL 148285, (Del.Super.)H.
H State v. Boardley, 1992 WL 354176, at *1 (Del.Super.)
You argue that during your Rule 9 summons hearing the prosecutor brought new and more severe charges against you. The prosecutor has discretion to add such charges. In Bordenkircher v. Hayes , the United States Court stated that, "so long as the prosecutor has probable cause to believe that the accused committed an offense defined by statute, the decision of whether or not to prosecute, and what charge to file or bring before a grand jury, generally rests entirely in his discretion." The requisite probable cause to support the additional charges exists in your case. Therefore, because you fail to assert any violation of your constitutional rights or articulate any facts that relate to "specific, non-frivolous issues," your Pro Se Motion for Transcripts is DENIED.
H. 434 U.S. 357 (1978).
Id. at 364.
State v. Johnson, 1999 WL 1568387 at *1 (Del.Super.)
IT IS SO ORDERED.