Opinion
ID No. 0603009243.
Submitted: September 25, 2008.
Decided: November 25, 2008.
Upon Defendant's Motion for Postconviction Relief. SUMMARILY DISMISSED.
Karin M. Volker, Esquire, Deputy Attorney General, Department of Justice, Wilmington, Delaware, Attorney for the State.
Roan Noble, Wilmington, Delaware, pro se.
ORDER
Upon consideration of Defendant's Motion for Postconviction Relief, it appears to the Court that:
1. On July 24, 2007, the Defendant pled guilty to Possession of a Firearm by a Person Prohibited and Tampering with Physical Evidence. On September 14, 2007, the Court sentenced the Defendant to six years, suspended after four years, at Level V followed by decreasing levels of probation and ordered the Defendant to pay restitution. Defendant filed this timely first motion for postconviction relief on September 25, 2008.
Pursuant to Superior Court Criminal Rule 61, Defendant's conviction became final on October 14, 2007. Super. Ct. Crim. R. 61(m)(1) (providing that a "judgment of conviction is final . . . [i]f the defendant does not file a direct appeal, 30 days after the Superior Court imposes sentence). Therefore, Defendant had until October 14, 2008 to file a motion for postconviction relief. Id. at 61(i)(1) (stating that a "motion for postconviction relief may not be filed more than one year after the judgment of conviction is final").
2. Defendant's first ground for relief, in its entirety is that "I was told to sign the plea for 3 years if not the [S]tate would recommend 8 years." The truth-in-sentencing form signed by Defendant, specifically asks whether "your attorney, the State or anyone threatened or forced you to enter this plea?" Defendant answered "no" to this question. Defendant has offered no support to his allegation that he was coerced into entering the plea agreement. Therefore, Defendant's first claim is conclusory and does not entitle him to relief.
3. Defendant's second ground for relief, in its entirety, is that the "Court said it accepted [the] plea of three years, but sentencing Judge gave more time than plea agreed [to]." A motion for postconviction relief pursuant to Rule 61 of the Delaware Superior Court Criminal Rules is an inappropriate vehicle to obtain a modification of his sentence. Therefore, this claim does not entitle Defendant to relief.
State v. Berry, 2007 WL 2822928 (Del.Super. Sept. 25, 2007) (summarily dismissing a motion for postconviction relief because it attacked the sentence imposed rather than the underlying judgment); State v. Johnson, 2007 WL 1989844 (Del.Super. July 5, 2007) (stating that a motion for postconviction relief is not the appropriate means to obtain a modification of sentence).
The Court also notes that Defendant filed a motion for modification of sentence alleging this same ground. This Court denied the motion explaining that "[t]he three year minimum is mandatory. The sentence was above guidelines because of the nature of the incident and guidelines do not control the sentence." Order Denying Def. Mot. for Modification of Sentence, D.I. 22., Dec. 6, 2007.
4. Defendant's third and final ground for relief, in its entirety, is that he "was charged under the new law [that] went into effect [in] 2007, charge was in 2006." It is unclear to what "new law" Defendant refers. Defendant was charged with and sentenced to Possession of a Firearm by a Person Prohibited pursuant to 11 Del. C. § 1448 and Tampering with Physical Evidence pursuant to 11 Del. C. § 1269, as those statutes existed at that time. Defendant's third ground for relief, therefore, does not entitle him to relief.
Defendant also had three other charges, one of which was dismissed, and two of which were nolle prossed.
5. For the reasons stated, Defendant's Motion for Postconviction Relief is SUMMARILY DISMISSED.
Super. Ct. Crim. R. 61(d)(4) ("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").
IT IS SO ORDERED.