Opinion
ID No. 9804014416
Submitted: May 10, 2002
Decided: August 30, 2002
Motion for Postconviction Relief — DISMISSED.
Melanie C. Withers, Deputy Attorney General, Georgetown, Delaware.
Darryl K. Fountain, Wilmington, Delaware.
ORDER
This 30th day of August, 2002, upon consideration of Defendant's Motion for Postconviction Relief, it appears to the Court that:
(1) On October 15, 1998, Melvin E. Pusey, Jr. ("Defendant") executed a plea agreement with the State in which he pled guilty to possession of a firearm, assault in the third degree, aggravated menacing and two counts of terroristic threatening. The plea agreement entered during the middle of his trial, was executed pursuant to Superior Court Criminal Rule 11(e)(1)(c) and required the State, in return for the Defendant's plea, to enter a nolle prosequi on all other charges contained in the indictment. In spite of the Defendant's habitual criminal offender status, the State agreed to recommend a sentence not to exceed 20 years.
(2) On December 18, 1998, prior to sentencing, the Defendant filed a motion to withdraw his guilty plea asserting that it was not made "knowing" and "voluntary" primarily chiming that he was influenced by the Court's inquiry of counsel as to whether plea discussions had occurred in this matter. Prior to sentencing, the Court heard from counsel and the Defendant regarding the claims set forth in the motion, which are repeated in the present motion before the Court, and found no merit to the assertions he was making. As such, the motion was denied on December 18, 1998, and the Defendant was sentenced.
(3) On August 4, 1999, the Supreme Court of Delaware granted the State's motion to affirm but did order a limited remand to allow the Superior Court to correct an incorrect reference to the habitual criminal statute in the original sentence relating to the misdemeanor offenses. Consequently, on September 24, 1999, the Superior Court issued a modified sentence order striking any reference to the habitual offender statute as to those offenses.
Pusey v. State, Del. Supr., No. 20, 1999, Hartnett, J. (Aug. 4, 1999) (ORDER).
(4) The Defendant filed the Motion for Postconviction Relief under Superior Court Criminal Rule 61 on January 23, 2002. Before reaching the merits of any claim for postconviction relief, the Court must first determine whether the Defendant's motion satisfies the procedural requirements of Superior Court Criminal Rule 61. A claim for postconviction relief may be procedurally barred under Rule 61(i) in the following circumstances: (1) when it is filed more than three years after the judgment has become final; (2) when the motion asserts a ground for relief that was not asserted in any prior postconviction proceeding; (3) when the claim is not raised at trial as the rules of court so require; and (4) when the matter was formerly adjudicated in a prior proceeding. In the case at bar, this Court finds that a procedural bar exists.
See Bailey v. State, 588 A.2d 1121, 1127 (Del. 1991); Younger v. State, 580 A.2d 552, 554 (Del. 1990).
See Super. Ct. Crim. R. 61(i)(1), (2), (3), (4).
(5) It is fundamental to this Court's jurisdiction that in order to consider a Rule 61 motion, the Defendant must file his petition within the period of limitations fixed by law. Defendant's original motion was incorrectly filed in the Prothonotary's Office in New Castle County by his counsel on December 18, 2001. On January 4, 2002, the Prothonotary's Office telephoned his counsel and advised that the motion was filed in the wrong county. While it appears that the Prothonotary did not return the document to Defendant's counsel, on January 15, 2002, Mr. Fountain agrees that the Court staff again contacted his office and advised him that the motion had not been docketed in either Sussex or New Castle County Prothonotary Offices. As a result, it appears Mr. Fountain then picked up the document from the New Castle County Prothonotary and subsequently filed it in Sussex County on January 23, 2002.
Riggs v. Riggs, 539 A.2d 163 (Del. 1998) (citing Fisher v. Biggs, 284 A.2d 117, 118 (Del. 1971)).
(6) A Rule 61 motion must be filed within three years of the judgment of conviction becoming final and the State has argued that Defendant's motion failed to meet this limitation. However, the State fails to appreciate the consequences of the appeal and resentencing that occurred in this matter. Mr. Pusey's case was appealed to the Supreme Court which issued their decision on August 4, 1999, and the Defendant was subsequently resentenced by this Court on September 24, 1999. As such, the Court finds the limitations set forth in Rule 61(i)(1) began on the date of the resentencing and the deadline for filing the motion would have been September 24, 2002. Since this motion was filed on January 23, 2002, it is found to be timely filed.
Superior Court Civil Rule 61(i)(1).
Younger v. State, 580 A.2d at 554; Anderson v. State, Del. Supr., No. 353, 1999, Holland, J. (May 8, 2000) (ORDER).
(7) While the Court has allowed the motion to proceed under Rule 61(i)(1) the Defendant still does not address why the motion is not procedurally barred as being formerly adjudicated under subsection (i)(4). Prior to the Defendant's sentencing on December 18, 1998, the Court conducted an inquiry into the precise issue now raised by the Defendant and found the claims to be without merit. While it is not clear from the Supreme Court's decision issued on August 4, 1999 the factual representations in the order do reference the Defendant's request to withdraw his plea and this Court cannot imagine it was not the primary contention made by the Defendant in his appeal. As such, it appears that both this Court and the Supreme Court have previously ruled on the issues now being raised by the Defendant in his Rule 61 motion, and both Courts have found them to be without merit. These prior adjudications bar the Defendant from raising the issue a third time in the form of a Rule 61 motion.
Pusey v. State, Del. Supr., No. 20, 1999, Hartnett, J. (Aug. 4, 1999) (ORDER).
(8) The Court finding that the claims raised by the Defendant in his motion under Rule 61 are barred as having been formerly adjudicated, the Defendant's motion is hereby DISMISSED. IT IS SO ORDERED.