Opinion
ID# 30500267DI
Submitted: May 17, 2002
Decided: June 13, 2002
On Defendant's Pro Se Motion for Postconviction Relief.
SUMMARILY DISMISSED.
ORDER
This 13th day of June, 2002, upon consideration of a pro se Motion for Postconviction Relief filed by Edward Brock (the "Defendant"), it appears to the Court that:
1. Defendant has filed this Motion for Postconviction Relief (the "Motion") pursuant to Superior Court Criminal Rule 61. It is the second such motion that Defendant has filed. For the reasons stated below, Defendant's Motion is SUMMARILY DISMISSED.
2. On September 16, 1985 a jury found Defendant guilty of two counts of Second Degree Rape (title 11, section 772 of the Delaware Code). These charges stemmed from two instances of sexual intercourse between Defendant (who was then 34 years old) and his stepdaughter (who was then 14 years old) that occurred in 1984; Defendant denied that he committed the acts complained of. Defendant was sentenced in March 1986 to 30 years incarceration at Level V for each conviction, sentences to run consecutively, for a total of 60 years. Defendant's convictions were affirmed on direct appeal. Dedendant filed his first motion for postconviction relief on June 26, 1992, which this Court denied. On appeal, the Supreme Court affirmed this Court's denial of that motion. Defendant filed this motion on May 17, 2002.
Willis L. Grayson, Jr. v. State of Delaware, 524 A.2d 1 (Del. 1987).
That motion normally would have been barred by the three-year limitations period contained in Superior Court Criminal Rule 61(i)(1), but Defendant had filed a "Motion for Judgment of Evientuary [sic] Hearing New Trial" on July 11, 1989 that was never docketed by the Prothontary, thus tolling the limitations period. State of Delaware v. Willis L. Grayson, Jr., Del. Super., ID# 30500267DI, Del Pesco, J. (Dec. 15, 1992) (Mem. Op.).
Willis L. Grayson, Jr. v. State of Delaware, 1993 WL 78229 (Del.Supr.).
3. Defendant raises three arguments in his motion: 1) that he "has a protected liberty interest in a proceeding under the Protection from Abuse Act [title 10, sections 1041-1048 of the Delaware Code]"; 2) that the Protection from Abuse Act "was intended to protect against domestic violence . . . [and a] proceeding under this [A]ct . . . is a civil proceeding, held in the Family Court"; and 3) that Defendant was "unaware of the law and didn't know that he was a part of [a] protected class . . . because his attorney never questioned the proceedings that instituted the alleged charges [for which Defendant was convicted]." Additionally, Defendant attached a generic "Memorandum of Law in Support of Rule 61 Motion for Post-Conviction Relief"; the memorandum appears to have been drafted by someone other than Defendant, and it appears that Defendant inserted his name, the charges he was convicted of, his sentencing date and the duration of his sentencing, and the result of his appeal.
Def.'s Mot. at 3.
4. Under Superior Court Criminal Rule 61(i)(1), a motion for postconviction relief "may not be filed more than three years after judgment of conviction is final. . . ." The procedural bar of Superior Court Criminal Rule 61(i)(1) may potentially be overcome by the "fundamental fairness" exception in Superior Court Criminal Rule 61(i)(5), but that exception is narrow and is applied only in limited circumstances. Ineffective assistance of counsel claims are not subject to the bar of Superior Court Rule 61(i)(3). A defendant "must support . . . ineffective assistance of counsel claims with concrete allegations of actual prejudice, otherwise the movant risks summary dismissal." Superior Court Criminal Rule 61(d)(4) provides that 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 judge may enter an order for its summary dismissal and cause the movant to be notified."
Super. Ct. Crim. R. 61(i)(1).
Younger v. State, 580 A.2d 552, 555 (Del. 1990).
Cobb v. State, Del. Supr., No. 362, 1995, Walsh, J. (January 10, 1996) (ORDER) at 7.
Younger, 580 A.2d at 556.
Super. Ct. Crim. R. 61(d)(4).
5. The Court is aware of multiple identical motions for posconviction relief and memoranda in support thereof that have recently been filed by defendants convicted of sex crimes. The Court addressed this phenomenon in State v. Domingo Torres, a case that involved a defendant convicted of 26 sexual offenses against his natural daughter. The Court wrote:
Del. Super., ID# 30101192DI, Ableman, J. (May 24, 2002) (ORDER), appeal docketed, No. 319, 2002 (Del. June 5, 2002).
(8) Defendant's argument that he is entitled to the protections of the Protection from Abuse Act is not only patently frivolous but offensive in light of the charges for which he was convicted. The PFA statute is intended to provide a civil remedy to family members, living spouses, or individuals who have a child in common from abusive, violent, harassing or threatening behavior by other members of the family, former family or household. In short, it is intended to protect individuals against domestic violence. To suggest that defendant was somehow entitled to a civil protective order because his eleven year old daughter was the victim of twenty-six sexual offenses perpetrated by him is a repugnant and unprecedented reading of the statute.
(9) Moreover, the Court is aware that this motion is one of a dozen or so verbatim motions that have been filed by numerous defendants. These motions have been assigned to various judges in this Court. None of these "cookie-cutter" motions, obviously prepared by one individual at the prison and copied by others, specifically address the facts of each individual defendant's case, nor do they appear to have been prepared by the individual defendants who separately signed the copies. Not only is this photocopied "form" motion frivolous and baseless on the merits, but it represents an abuse of the Court's processes and should be summarily dismissed."
Id. at 4-5.
6. As expressed in the Torres case, this motion and other similar "cookie-cutter" motions are utterly without merit. Accordingly, it "plainly appears" from Defendant's motion that he is not entitled to relief, and that Defendant's claim of ineffective assistance of counsel implicit in his argument that his attorney "never questioned the proceedings that instituted the alleged charges" is entirely conclusory and not grounded in "concrete allegations of actual prejudice." Additionally, Defendant has not shown that the "fundamental fairness" exception of Superior Court Criminal Rule 61(i)(5) applies to overcome the time bar of Superior Court Criminal Rule 61(i)(i). Accordingly, Defendant's motion is SUMMARILY DISMISSED.
IT IS SO ORDERED.