Opinion
No. 589, 2000
Decided: December 7, 2001
Superior Court New Castle County. C.A. Nos. 99-08-0767, 99-08-0768, 99-08-2482, VN97-03-0286-01.
Affirmed and Remanded
Unpublished Opinion is below.
WILLIAM J.WEBB, JR., Defendant Below-Appellant, v. STATE OF DELAWARE, Plaintiff Below-Appellee. No. 589, 2000 Supreme Court of the State of Delaware. Decided: December 7, 2001
Before VEASEY, Chief Justice, WALSH and HOLLAND, Justices.
ORDER
This 7th day of December 2001, upon consideration of the briefs on appeal and the record below, it appears to the Court that:
(1) The defendant-appellant, William J. Webb, filed this appeal from the November 27, 2000 order of the Superior Court denying his second motion for postconviction relief pursuant to Superior Court Criminal Rule 61.
We find no merit to the appeal. Accordingly, we AFFIRM. Because of an error in Webb's sentence for burglary, however, we REMAND to the Superior Court for the limited purpose of correcting Webb's sentencing order.
(2) In this appeal, Webb claims that the Superior Court abused its discretion by dismissing his second motion for postconviction relief as procedurally barred. Specifically, Webb claims that, because the Superior Court incorrectly stated that he had not asserted a claim of coercion in his first motion for postconviction relief and because the prosecutor's breach of the plea agreement violated his constitutional rights, the procedural bars should not apply. Webb also claims that the Superior Court abused its discretion by denying his motion for transcripts of the plea colloquy and sentencing hearings.
Super. Ct. Crim. R. 61(i)(2),(4) and (5).
(3) In March 2000, Webb pleaded guilty to Burglary in the First Degree, Assault in the First Degree and Endangering the Welfare of a Child.
He also admitted to violating the terms of a previously imposed period of probation. On the burglary conviction, Webb was sentenced to 12 years incarceration at Level V, to be suspended after 5 years for decreasing levels of probation. On the assault conviction, he was sentenced to 30 months incarceration at Level V, to be suspended after 24 months for decreasing levels of probation. On the endangering conviction, he was sentenced to 12 months incarceration at Level V, to be suspended for probation. On the violation of probation, Webb was sentenced to 3 years incarceration at Level V. Webb did not file a direct appeal of his convictions or sentences. He did, however, file two postconviction motions, the second of which he now appeals to this Court.
Laudably, the State points out that Webb should not have been sentenced to more than 10 years incarceration at Level V on the burglary conviction. 11 Del. C. § 826, 4205(b)(3).
(4) When reviewing a motion under Rule 61, a court must first determine that the motion satisfies the procedural requirements of the rule before addressing any substantive issues. Contrary to Webb's allegation, the Superior Court did not dismiss his motion on the ground that he had failed to assert a claim of coercion in his previous motion. Rather, the Superior Court correctly held that, to the extent Webb had asserted claims in his previous motion for postconviction relief that were re-asserted in his present motion and to the extent Webb asserted claims in his present motion that had not been asserted previously, all such claims were procedurally barred.
Bailey v. State, Del. Supr., 588 A.2d 1121, 1127 (1991).
Super. Ct. Crim. R. 61(i)(2) and (4).
(5) Webb next claims that the prosecutor breached the plea agreement by recommending 28, rather than 20, years of Level V imprisonment at the sentencing hearing. Webb alleges that this breach constituted a violation of his constitutional rights and rendered the procedural bars inapplicable. Webb is incorrect that the prosecutor's alleged breach of the plea agreement excuses his procedural default. Even if the prosecutor did recommend a sentence in excess of what was agreed to, there was no prejudice to Webb since the total amount of the Level V sentence imposed by the Superior Court was less than 20 years.
The plea agreement contains the following language: "State agrees not to recommend more than 20 years L[evel] V."
Super. Ct. Crim. R. 61(i)(2),(4) and (5).
(6) Webb's final claim that the Superior Court abused its discretion by denying his request for transcripts is also unavailing. It was within the discretion of the Superior Court to determine whether transcripts were needed in order to rule on Webb's motion for postconviction relief. There was no error or abuse of discretion on the part of the Superior Court in determining that it was able to rule on the motion without the transcripts.
Super. Ct. Crim. R. 61(d)(3).
NOW, THEREFORE, IT IS ORDERED that the judgment of the Superior Court is AFFIRMED. This matter is REMANDED to the Superior Court for correction of Webb's sentence for Burglary in the First Degree from 12 years incarceration at Level V to 10 years incarceration at Level V.
Jurisdiction is not retained.