Opinion
I.D. No. 84006375DI.
Submitted: June 19, 2003.
Decided: August 27, 2003.
Cr.A.#ID IN84-10-1804R2, 84-10-1805R2, 84-10-1806R2, 84-10-1807R2
William J. Tatem, Smyrna, Delaware, Pro Se, Defendant.
Stephen Wood, Esquire, Deputy Attorney General, New Castle County, State of Delaware, Attorney for the State of Delaware.
ORDER
UPON DEFENDANT'S MOTION FOR POSTCONVICTION RELIEF DENIED.
William J. Tatem ("Defendant") has filed this pro se Motion for Postconviction Relief pursuant to Superior Court Criminal Procedure Rule 61, wherein he seeks to set aside a judgment of criminal conviction based on violations of his rights, including, but not limited to, violations of his constitutional rights under the United States Constitution and the Delaware Constitution. Defendant sets forth three grounds in his motion upon which he seeks postconviction relief for the reasons stated below, Defendant's Motion is DENIED.
Statement of Facts
On November 27, 1984, following a jury trial, the Defendant was convicted of Rape First Degree in violation of 11 Del. C. § 764, Kidnapping First Degree in violation of 11 Del. C. § 783A, Possession of a Deadly Weapon During the Commission of a Felony in violation of 11 Del. C. § 1447, and Possession of a Deadly Weapon by a Person Prohibited in violation of 11 Del. C. § 1448.Pursuant to 11 Del. C. § 4209A, as to Rape First Degree, Defendant was sentenced by the Court on April 4, 1985 to a life sentence, the first twenty years of the life sentence being a mandatory term of incarceration without benefit of probation or parole. Defendant received a life sentence for Kidnapping First Degree to begin at the expiration of the life sentence imposed on Rape First Degree with no credit time. For the crime of Possession of a Deadly Weapon during the Commission of a Felony, Defendant was sentenced to a mandatory five years incarceration at Level V not subject to suspension, probation or parole. For the offense of Possession of a Deadly Weapon by a Person Prohibited, Defendant received one year incarceration at Level V.
Defendant timely filed a direct appeal of his conviction to the Delaware Supreme Court asserting insufficient evidence to support his convictions, denial of expert testimony on the "causes and affects [sic] of `concussion syndrome,"' and ineffective assistance of counsel at trial. On February 5, 1986, the Supreme Court affirmed Defendant's convictions and sentences.
Tatem v. State, 504 A.2d 573 (Del. 1986).
After his direct appeal was affirmed, Defendant filed four subsequent motions for postconviction relief. All were denied on the grounds that they were either procedurally barred or untimely filed. On May 30, 1994, in a further attempt to appeal his conviction, Defendant filed a notice of appeal in a letter addressed to the Delaware Supreme Court "wishing to appeal his conviction." By Order dated June 30, 1994, the Court dismissed this appeal for lack of jurisdiction pursuant to Supreme Court Rule 6 and 29(b).
See generally Tatem v. State, 608 A.2d 730 (Del. 1992); Tatem v. State, 1988 WL 19215 (Del.); Tatem v. State, 1988 WL 5724 (Del.); Tatem v. State, 1987 WL 4685 (Del.); State v. Tatem, 1987 WL 847754 (Del.Super.Ct.); State v. Tatem, 1987 WL 847753 (Del.Super.Ct.); State v. Tatem, 1986 WL 9027 (Del.Super.Ct.).
Tatem v. State, 648 A.2d 426 (Del. 1994).
On August 8, 2001, Defendant filed a motion for correction of sentence pursuant to Superior Court Rule 35(a). The Court denied Defendant's motion and the Delaware Supreme Court affirmed, noting that Defendant's Rule 35(a) motion, based on alleged ineffective assistance of counsel relating to his kidnapping conviction, was without merit.
Tatem v. State, 787 A.2d 80 (Del. 2001).
Defendant's Contentions
Defendant filed the instant motion for postconviction relief on June 16, 2003, wherein he states the following grounds for relief: 1) improperly sentenced under a non-existent statute; 2) question of law whether it was the legislative intent of the state law makers to allow a citizen to be arrested, tried and sentenced under a statute that had not been passed or ratified at the time the Defendant committed the crime; and 3) Defendant's two attorneys should have known or did know that the statute Defendant was sentenced under was non-existent. In a nutshell, Defendant alleges that the sentence he received for the Rape First Degree conviction, which required a mandatory minimum twenty year term of incarceration, contravenes the fundamental constitutional protection against imposition of an ex post facto law as enumerated in Article I, Section 10, of the United States Constitution. As the Court will further explain, because this motion was filed more than three years after the judgment of conviction was finalized and because Defendant has failed to demonstrate the existence of a constitutional violation resulting in a "miscarriage of justice" or undermining the "fundamental fairness" of the proceedings, the motion must be denied on procedural and substantive grounds.Procedural Bars
Under Delaware law, when considering a motion for postconviction relief, this Court must first determine whether the defendant has met the procedural requirements of Superior Court Criminal Rule 61(i) before it may consider the merits of defendant's postconviction relief claim. To protect the integrity of the procedural rules, the Court should not consider the merits of a postconviction claim where a procedural bar exists.
Bailey v. State, 588 A.2d 1121, 1127 (Del.Super.Ct. 1991); Younger v. State, 580 A.2d 552, 554 (Del. 1990) (citing Harris v. Reed, 489 U.S. 255, 265 (1989)).
State v. Gattis, 1995 WL 790961, at *2 (Del.Super.Ct.) (citing Younger, 580 A.2d at 554).
Upon initial examination of the procedural bars imposed by Rule 61(i), the Court finds that Defendant has failed to successfully overcome the first of two hurdles in his motion for postconviction relief, i.e., the time limitation bar to relief set forth in Rule 61(i)(1). Pursuant to this Rule, a postconviction motion that is filed more than three years after judgment of conviction is untimely, and thus procedurally barred. Super. Ct. Crim. R. 61(i)(1) more fully provides:
A motion for postconviction relief may not be filed more than three years after the judgment of conviction is final or, if it asserts a retroactively applicable right that is newly recognized after the judgment of conviction is final, more than three years after the right is first recognized by the Supreme Court of Delaware or by the United States Supreme Court.
Super. Ct. Crim. R. 61(i)(1).
Super. Ct. Crim. R. 61(i)(1).
Defendant filed the instant motion approximately seventeen and one half years after his conviction became final on February 5, 1986. Additionally, in his claim for relief, Defendant does not assert a new retroactive rule under any circumstance. Thus, his motion is time-barred under subdivision (i)(1) of Rule 61. Despite the fact that Defendant's motion is barred in accordance with subdivision (i)(1) and, therefore, the Court need not address the merits of Defendant's ex post facto claim, the Court considers his claim of a fundamental constitutional violation to be a serious allegation that necessitates further investigation, review and resolution. As such, the Court will examine Defendant's claim under the rubric of the "miscarriage of justice" exception contained in subdivision (i)(5) of Rule 61.
Within the purview of Rule 61(i)(1), a conviction becomes final for purposes of postconviction review:
(a) for a defendant who takes a direct appeal of the conviction, when the direct appeal process is complete (the date of the issuance of the mandate under Supreme Court Rule 19); or
(b) for a defendant who does not take a direct appeal, when the time for direct appeal has expired (30 days after sentencing); or
(c) if the United States Supreme Court grants certiorari to a defendant from a decision of this Court, when that Court's mandate issues. Jackson v. State, 654 A.2d 829, 833 (Del. 1995).
The Rule 61 time bar is not an absolute prohibition to postconviction relief petitions filed three years after conviction. Rule 61(i)(5) may potentially overcome the procedural bars of Rule 61. Rule 61(i)(5) "[i]s a general default provision, and permits a petitioner to seek relief if he or she was otherwise procedurally barred under Rules 61(i)(1)-(3)." Rule 61(i)(5) provides:
Bailey, 588 A.2d at 1125 (citing Boyer v. State, 562 A.2d 1186, 1188 (Del. 1989)).
Bailey. 588 A.2d at 1129.
The bars to relief in paragraphs (1), (2), and (3) of this subdivision shall not apply to a claim that the court lacked jurisdiction or to a colorable claim that there was a miscarriage of justice because of a constitutional violation that undermined the fundamental legality, reliability, integrity or fairness of the proceedings leading to the judgment of conviction.
Super. Ct. Crim. R. 61(i)(5).
Super. Ct. Crim. R. 61(i)(5).
The "miscarriage of justice" or "fundamental fairness" exception contained in Rule 61(i)(5) is "[a] narrow one and has been applied only in limited circumstances, such as when the right relied upon has been recognized for the first time after a direct appeal." Accordingly, Rule 61(i)(5) provides for postconviction consideration of issues which have not been previously litigated and may entail a `miscarriage of justice.'
Younger, 580 A.2d at 555 (citing Teague v. Lane, 489 U.S. 288, 297-99 (1989)) (emphasis added).
State v. Rosa, 1992 WL 302295, at *7 (Del.Super.Ct.).
Since the Defendant is procedurally barred under Rule 61(i)(1), his only alternative means of relief is to proceed under Rule 61(i)(5). Defendant has made no claim that the court lacked jurisdiction. He therefore has the burden of presenting a colorable claim that there was a miscarriage of justice because of a constitutional violation that undermined the fundamental legality, reliability, integrity or fairness of the proceedings leading to the judgment of conviction. If a movant presents a genuine "colorable claim," it will be sufficient to avoid dismissal of the claim and will require the Court to examine the evidentiary issues. It is worth noting however, that once a movant makes a showing that he is entitled to relief, thereby avoiding summary dismissal of his motion, an evidentiary hearing is not necessarily required. The Court may instead elect to examine the evidentiary issues presented in the submissions of the party and in the record without a hearing. Also, whether the movant has presented a "colorable claim" may be determined on the basis of the postconviction motion itself, prior to any responses being filed. Moreover, "[i]n a postconviction proceeding, the petitioner has the burden of proof and must show that he has been deprived of a substantial constitutional right before he is entitled to any relief." In other words, "[t]he petitioner bears the burden of establishing a `colorable claim' of injustice. (citation omitted). While `colorable claim' does not necessarily require a conclusive showing of trial error, mere `speculation' that a different result might have [sic] obtained certainly does not satisfy the requirement." Finally, the question of whether a movant has presented a "colorable claim" is a question of law that is reviewed by the Delaware Supreme Court de novo.
Super. Ct. Crim. R. 61(d)(4) states:
Summary dismissal. 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(h) states in part:
Evidentiary hearing. (1) Determination by court. After considering the motion for postconviction relief, the state's response, the movant's reply, if any, the record of prior proceedings in the case, and any added materials, the judge shall determine whether an evidentiary hearing is desirable . . . (3) Summary Disposition. If it appears that an evidentiary hearing is not desirable, the judge shall make such disposition of the motion as justice dictates.
Bailey, 588 A.2d at 1130 (citing Younger v. State, 580 A.2d 552, 555 (Del. 1990)) (emphasis added).
State v. Getz, 1994 WL 465543, at *11 (Del.Super.Ct.).
Webster, 604 A.2d at 1366.
Defendant's Claim
In his motion, Defendant states that "[i]t is submitted that at the time movant was alleged to have committed the offense(s), First Degree Rape was a class A felony, requiring the imposition of a life sentence only." It is Defendant's position that "[t]he imposition and enactment of the first twenty (20) years being mandatory did not become effective until 1989 . . . movant/defendant's crimes . . . were alleged to have been committed in 1984." Further, Defendant contends that "[b]ased on the aforementioned, 61(i)(1), 61(i)(2) and Boyer v. State (citation omitted), and all related cases as untimely are not applicable to this case; and are arguably barred in cases where a sentence is statutorily illegal, where there has been a miscarriage of justice, Cr. R. 61(i)(5), and cannot be barred when there is a constitutional issue claimed." Lastly, Defendant concludes "[i]t is further submitted that in 1984, there was no such statute in existence that would permit the Court to sentence the movant at bar to a twenty (20) year mandatory term on the first portion of his life sentence, and said statute did not become effective until 1989."Upon examining Defendant's claim, the Court finds that it is lacking in both substance and merit. To begin, Defendant fails to specifically cite anywhere in his motion the "1989 statute" that purportedly made his minimum mandatory sentence unconstitutional because it was imposed ex post facto with respect to his criminal conviction. Article I, Section 10, of the United States Constitution provides that, "No State shall . . . pass any . . . ex post facto Law . . ." This exelusion of ex post facto laws applies only to retroactive penal statutes that disadvantage a defendant. Further, the United States Supreme Court has held that only substantive changes, not procedural changes, in a penal statute would be ex post facto. Where the Defendant refers to the "1989 statute" or to the "non-existent statute" in his motion, the Court can only deduce that Defendant is making reference to the Truth in Sentencing Act of 1989. Defendant's assertion is correct in that this statute should not be applicable to his conviction since it was enacted five years after he committed his crimes. But, Defendant's belief that this statute was the controlling law under which he was sentenced is erroneous and misplaced.
U.S. CONST. art. I, § 10.
Collins v. Youngblood, 497 U.S. 37, 41 (1990).
Dobbert v. Florida, 432 U.S. 282, 293 (1977).
Former § 4209A, concerning punishment for unlawful intercourse in the first degree, was repealed by 67 Del. Laws, c. 130, § 6, effective July 17, 1989 (known as the Truth in Sentencing Act of 1989). The Truth in Sentencing Act of 1989 is effective only with regard to crimes committed as of 12:01 a.m., June 30, 1990. The crimes Defendant was convicted of occurred in 1984.
Defendant committed the rape, kidnapping and associated weapons offenses on August 25, 1984. He was tried and convicted for them on November 27, 1984. He was sentenced for each conviction on April 4, 1985. Defendant asserts that he was sentenced pursuant to the Act of 1989 because he received a minimum mandatory twenty year sentence for First Degree Rape. Defendant was not sentenced under the guidelines of the Act of 1989 for obvious reasons — it did not exist at the time of his criminal convictions and sentencing. Rather, he was convicted pursuant to 11 Del. C. § 764, Rape in the First Degree, and sentenced pursuant to the then existing sentencing provisions contained within 11 Del. C. § 4209A, Punishment for First Degree Rape.
DEL. CODE ANN. tit. 11 Del. C. § 764. Rape in the First Degree; class A felony. A male is guilty of rape in the first degree when he intentionally engages in sexual intercourse with a female without her consent, and: (1) In the course of the offense he inflicts serious physical, mental or emotional injury upon the victim, or (2) The victim was not the defendant's voluntary social companion on the occasion of the crime and had not previously permitted him sexual contact. Rape in the first degree is a class A felony.
DEL. CODE ANN. tit. 11 Del. C. § 4209A. Punishment for first-degree rape. Any person who is convicted of first-degree rape shall be punished by imprisonment for not less than twenty years without benefit of probation or parole or any other reduction.
As of July 21, 1982, the sentencing provision contained in 11 Del. C. § 4209A mandated that a person convicted of Rape in the First Degree, a class A felony under 11 Del. C. § 764, was to be imprisoned for no less than twenty years without any possible reduction in the term. It was not until 1986, as part of an overall revision of the laws governing sex offenses, that the General Assembly eliminated the crime of Rape in the First Degree from the Delaware Code and replaced it with a crime known as Unlawful Sexual Intercourse in the First Degree, which was also described as a class A felony. This amendment became effective on July 9, 1986 and the amended § 4209A still required the imposition of the mandatory minimum sentence of twenty years for a conviction of Unlawful Sexual Intercourse in the First Degree. It is evident that "[t]he legislative history of § 4209A shows the General Assembly's intent to impose a mandatory minimum twenty year sentence for conviction of the most serious sexual offense." Further, [f]or almost four years prior to the 1986 amendments, the provisions of § 4209A required the imposition of the mandatory minimum sentence for a conviction of rape in the first degree. As of July 9, 1986, the provisions of § 4209A required the same sentence for a conviction of unlawful sexual intercourse in the first degree."
65 Del. Laws ch. 494, Section 1.
DEL. CODE ANN. tit. 11 Del. C. § 775. Unlawful sexual intercourse in the First Degree; class A felony.
Wicks v. State, 559 A.2d 1194, 1196 (Del. 1989).
Id.
Accordingly, Defendant's assertion that he has suffered a miscarriage of justice because a fundamental constitutional right prohibiting imposition of an ex post facto law that would negatively impact his sentencing was violated, is unsupported by both law and the factual circumstances surrounding his criminal convictions and sentencing. Defendant's claim falls well below the required tenets embodied within the necessary showing of a "miscarriage of justice" pursuant to Rule 61(i)(5). That being said, the Court need not address Defendant's ancillary claim that his attorneys knew, or should have known, about the non-existent statute. This claim, tantamount to an accusation of ineffective assistance of counsel, is without merit in light of the Court's holding that Defendant was properly sentenced.
Conclusion
For all of the foregoing reasons, Defendant's Motion for Postconviction Relief Pursuant to Superior Court Criminal Rule 61 is procedurally and substantively barred under 61(i)(1) and 61(i)(5). Thus, the Motion for Postconviction Relief Pursuant to Superior Court Criminal Rule 61 is hereby DENIED.