Opinion
I.D. No. 0511005411.
Submitted: December 6, 2006.
Decided: December 18, 2006.
Upon Defendant's Motion for Postconviction Relief.
SUMMARILY DISMISSED.
John W. Downs, Esquire, Deputy Attorney General, Department of Justice, Wilmington, Delaware, Attorney for the State.
Paul F. Romano Jr, Wilmington, Delaware, pro se.
ORDER
This 18th day of December, 2006, upon consideration of Defendant's motion for postconviction relief, it appears to the Court that:
1. On March 6, 2006, Defendant pled guilty to Shoplifting and Forgery Second Degree. At that time he was sentenced to one year at Level 2. As a result of a violation of probation, Defendant was sentenced on April 13, 2006 to two years at Level V, suspended after 14 days for the balance to be served at Level IV Crest, and upon successful completion of the Crest program, the balance of the Level IV sentence suspended for 18 months at Level 3 Crest Aftercare. Defendant subsequently filed three motions for modification of sentence pursuant to Superior Court Criminal Rule 35 on June 14, September 6, and October 25, 2006. This Court denied all three motions.
3. On December 6, 2006, Defendant filed a pro se motion for postconviction relief pursuant to Superior Court Criminal Rule 61. Defendant asserts four grounds for relief: (1) he should have been released, (2) his placement in the Civigenics program is in contradiction with his sentence, (3) he should have been placed in the Crest program not the Civigenics program, and (4) he does not meet the criteria for entry in the Civigenics program.
4. The purpose of Rule 61 is to provide a procedure by which a defendant can "set aside a judgment of conviction or a sentence of death on the ground that the court lacked jurisdiction or on any other ground that is a sufficient factual and legal basis for a collateral attack upon a criminal conviction or a capital sentence." Defendant's motion does not collaterally attack his judgment; rather, he appears to be seeking a modification of his sentence. A motion for postconviction relief is not the appropriate means to obtain this relief.
Superior Court Criminal Rule 61(a)(1).
See State v. Costango, 2002 WL 234748 (Del.Super.) (summarily dismissing a motion for postconviction relief where the actual relief sought was a modification of sentence).
5. Moreover, all of Defendant's grounds have previously been alleged and considered by this Court in the context of Defendant's motions for modification of his sentence. The Court denied those motions because it found that the sentence was appropriate. Furthermore, the Court explained to the Defendant that the Civigenics program is part of Crest.
6. Rule 61(d)(4) allows the Court to summarily dismiss a motion for postconviction relief 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 . . . ." Therefore, for the reasons stated, Defendant's motion for postconviction relief is SUMMARILY DISMISSED.
IT IS SO ORDERED.