SUBMITTED: April 17, 2014
Dear Mr. Franklin:
Defendant John M. Franklin ("defendant") has filed his fourth motion for postconviction relief pursuant to Superior Court Criminal Rule 61 ("R. 61" or "Rule 61"). He also has filed several associated motions: motions for the appointment of counsel, to expand the record and for an evidentiary hearing.
I first address defendant's motion for appointment of counsel. He argues that because he was not afforded trial counsel on his first postconviction motion, he is entitled to an attorney now and he also should be allowed to reassert, with the assistance of an attorney, all the postconviction claims he previously has filed. I assume defendant is arguing a recent rule change to Rule 61(e) and some recent case law support these contentions.
The May 6, 2013 and February 1, 2014 amendments to Rule 61(e), which provide for the appointment of counsel for an indigent defendant's first timely filed Rule 61 motion, were not retroactive and did not create any rights to an attorney for a defendant who previously has filed postconviction motions. Furthermore, recent decisions in the cases of Martinez v. Ryan or Holmes v. State did not establish a constitutional right to an attorney on a postconviction motion or the opportunity for a defendant to redo his or her Rule 61 motion without the procedural bars applying. At this stage of the proceedings, defendant is entitled to an attorney "only in the exercise of discretion and for good cause shown". Because, as discussed below, the procedural bars clearly apply, no need exists to appoint counsel to represent defendant in this pending motion. His request for an attorney is DENIED.
I next address defendant's motion to expand the record. Defendant has submitted nothing new or of legal or factual significance in support of a motion to expand the record. Thus, that motion is DENIED.
I consider his motion for an evidentiary hearing. In light of the ruling below that the motion is clearly barred on procedural grounds, no needs exists to hold an evidentiary hearing. That motion is DENIED.
I now turn to the motion for postconviction relief.
This Court's decision on defendant's third Rule 61 motion thoroughly outlines the procedural posture of this case as well as two other cases against him and the various postconviction claims and attempts for relief he has made over the years. The decision on the third motion for postconviction relief as well as previous decisions set forth the actual, established facts. Defendant's arguments in the pending fourth motion are based on his version of the facts, which are not the actual facts as established by the record. Defendant has failed to present his case on the facts as established, and his version of the facts and the arguments based on that version are ignored.
Defendant was convicted of five counts of rape in the first degree, one count of terroristic threatening, and one count of endangering the welfare of a child. He was sentenced to substantial periods of incarceration, 75 years of which are mandatory. The Supreme Court's mandate affirming the Superior Court judgment was dated March 18, 2005.
The first step this Court takes in addressing a postconviction motion is to determine whether the procedural bars of Rule 61 prevent its consideration or whether defendant has overcome the bars.
I outline his claims below.
Defendant raises procedural claims based upon the fact that the prosecution proceeded by information rather than indictment and upon his conclusory contention that the information was vague. He then argues that trial counsel was ineffective for failing to object to these alleged defects.
Defendant asserts claims of prosecutorial misconduct. He argues trial counsel was ineffective for failing to object to these ...