Opinion
ID No: 9606009907.
Submitted: July 28, 2004.
Decided: October 27, 2004. Corrected November 9, 2004.
Upon Defendant's Motion for Postconviction Relief — Summarily Dismissed.
CORRECTED ORDER
On July 20, 2004, Defendant filed a motion for postoconviction relief under Superior Court Criminal Rule 61. Defendant now claims that the guilty plea he entered over eight years ago, on October 23, 1996 to Theft was defective for several reasons.
The case was referred under Rule 61(d)(1) for preliminary consideration. Because it plainly appears from the motion and the record of prior proceedings that Defendant is not entitled to relief, the motion is subject to summary dismissal under Rule 61(d)(4).
In summary, Defendant's claims flow from the fact that between the time he committed the offense and when he pleaded guilty, the felony threshold for theft was raised by the General Assembly from $500 to $1,000. Defendant committed the theft between December 24, 1995 and January 10, 1996. At that time, the felony threshold under 11 Del. C. § 841 was $500. That law was changed effective June 10, 1996 to raise the threshold to $1,000. Defendant pleaded guilty on October 23, 1996.
Defendant raises his basic argument through several claims. To the extent that Defendant's claims are based on anything but the plea and sentence's illegality, those claims are time barred and procedurally defaulted under Rule 61(i)(1) and (3). The same goes for Defendant's ineffective assistance of counsel claims. Under Rule 61(i)(1), Defendant was required to file his motion within three years after the judgment of conviction was final. That means the deadline for a motion under Rule 61 expired in 1999, roughly five years ago.
Moreover, Defendant failed to take an appeal in 1996 and that amounts to a procedural default under Rule 61(i)(3). Although Defendant attempts to show cause for relief from the procedural default and prejudice, his arguments are circular and unpersuavsive.
While Defendant's claims under Rule 61 are subject to summary dismissal, the court cannot leave it at that. Defendant claims that his guilty plea and sentence are illegal. That amounts to a claim under Superior Court Criminal Rule 35. Accordingly, the court must reach the merits concerning the plea and sentence's legality.
As mentioned above, Defendant's claim stems from the fact that the law he pleaded guilty under was changed between when he committed the offense and when he pleaded guilty. Defendant raised this claim on September 27, 2000. In an October 17, 2000 letter to trial counsel, the court observed that the change to 11 Del. C. § 841's felony threshold was made effective after Defendant committed the offense and the change was not retroactive. The court stands by that.
See, e.g., Dahms v. State, 2004 WL 1874650 (Del.Supr.).
When Defendant stole merchandise from Sears between December 24, 1995 and January 10, 1996, the threshold for a felony theft conviction was $500. Accordingly, Defendant's theft amounted to a felony when he committed it. When the General Assembly increased the felony threshold it could have made the higher threshold apply retroactively. Instead, the law was approved and, therefore, became effective June 10, 1996. The higher threshold applied, therefore, to any theft that occurred on or after June 10, 1996. The new threshold did not apply to crimes, such as Defendant's, which were committed before the statute's effective date.
Conway v. Wolf Liquor Company, 200 A.2d 831, 834 (Del. 1964) (holding that an act takes immediate effect upon approval by the Governor absent a contrary provision in the act itself.)
See State v. Ismaaeel, 840 A.2d 644, 647-48 (Del.Super.Ct. 2004).
For the foregoing reasons, Defendant's June 20, 2004 motion for postconviction relief under Superior Court Criminal Rule 61 is summarily DISMISSED. To the extent Defendant's motion, in effect, falls under Superior Court Criminal Rule 35, it is DENIED.