DATE SUBMITTED: August 6, 2013
RICHARD F. STOKES, JUDGE
1) Ben Roten ("Roten" or "defendant") has filed a motion pursuant to Superior Court Criminal Rule 61 ("Rule 61") arguing that his constitutional rights were violated in connection with his first Rule 61 motion, which was filed and resolved in 2006, because he was not provided with counsel. He cites to the May 6, 2013, amendment to Rule 61 which provides for the appointment of counsel for an indigent defendant's first Rule 61 motion. He argues the cases of Holmes v. State and George v. State provide authority for the propositions that 1) this amendment is retroactive and alternatively, 2) the Supreme Court has held that a defendant is entitled to appointment of counsel on his first conviction motion even without the amendment.
2)On August 6, 2004, defendant pled guilty to charges of assault in the first degree and aggravated menacing. He was sentenced to substantial periods of incarceration. Defendant has filed various motions seeking to overturn his intelligent and voluntary guilty plea. On February 27, 2006, defendant filed his first motion for postconviction relief. Defendant did not request counsel be appointed to represent him in his first postconviction motion and at the time the motion was filed, he had no right absolute right to an attorney. This Court denied the motion as both procedurally barred and without merit. The Supreme Court affirmed the denial of that motion. Defendant's second motion for postconviction relief, filed on June 1, 2011, was denied by this Court. The Supreme Court affirmed that judgment, also.
3)On July 30, 2013, defendant filed his third motion for postconviction relief. Defendant is not arguing that, pursuant to Martinez v. Ryan,  he has a constitutional right to an attorney in his first postconviction motion, which must be retroactively applied. Instead, he argues that the May 6, 2013, amendment to Rule 61 provides him with this right. He argues that the Supreme Court's decision in Holmes determined the right to counsel in a first postconviction motion is retroactive. He further argues that the decisions in Holmes and George establish a right to counsel without consideration of the amendment. Defendant's filing implies an argument that he is entitled to start anew with his Rule 61 claims solely because the Court, sua sponte, did not appoint counsel to represent him in the first motion.
4) The Superior Court, in amending Rule 61 and providing an indigent defendant the right to counsel in his or her first postconviction motion, clarified the right was not retroactive. The Court clearly stated the amendment only applied to those defendants whose first postconviction motions were pending as of May 6, 2013, and to those who should file their first postconviction motion after May 6, 2013. In a case where a defendant's first motion for postconviction relief is pending on appeal, the Supreme Court is concluding that the Superior Court abused its discretion in not appointing an attorney for that defendant and is remanding that case for counsel to be appointed in connection with the defendant's first postconviction motion.The Supreme Court has not ruled that the amended version of Rule 61(e) is retroactive. Precedent for Roten's case are those cases where the Supreme Court has ruled against a defendant's demand for counsel in a second or subsequent postconviction motion and does not remand the matter for the Superior Court to consider the postconviction matter in light of the demand for counsel.
5)The case of George v. State does not support defendant's argument. Rule 61 always has provided for the appointment of counsel in certain circumstances, such as where good cause exists. In George, the State of Delaware requested that counsel be appointed to assist Mr. George, who had mental illness issues, in his first postconviction proceedings and the Supreme Court agreed such an appointment was required under those circumstances. George does not create any new rights for someone in Roten's position.
6)Defendant has no right to have an attorney appointed to represent him nor does he have a right to reopen the claims of his initial motion for postconviction relief which were substantively resolved and which now ...