Submitted: March 18, 2014
Upon Defendant's Second Motion for Postconviction Relief.
Michael J. Hendee, Esquire, Deputy Attorney General, Department of Justice, Wilmington, Delaware, Attorney for the State.
Jose D. Bezarez, Smyrna, Delaware, pro se.
This 12th day of May 2014, upon consideration of Defendant's Second Motion for Postconviction Relief, it appears to the Court that:
1. Defendant Jose Bezarez ("Defendant") filed this Second Motion for Postconviction Relief based on Defendant's apparent belief that his trial counsel was ineffective due to a litany of failures leading up to his plea of nolo contendre to one count of Reckless Endangering First Degree on the day of trial. Defendant fired two shots through the floor of an apartment and into the apartment of the family living below. Defendant was subsequently sentenced to two years of incarceration at Level V.
2. Defendant's first Motion for Postconviction Relief was denied on June 22, 2010. That motion alleged his counsel was ineffective because he failed to investigate and question witnesses as to Defendant's innocence prior to the plea. The Court found Defendant's nolo contendre plea was given "freely and voluntarily" and therefore waived his claims to ineffective assistance before the entry of the plea. Alternatively, the Court found his claims fell below the test of ineffective assistance of counsel laid out in Strickland v. Washington.
3. Defendant's current Motion for Postconviction Relief again relies on ineffective assistance of counsel claims. Defendant asserts four separate grounds for postconviction relief:
i. Trial counsel was ineffective for "failing to communicate with him, failing to provide him with discovery, failing to apprise him of the status of the case, and failing to consult with him concerning defense strategy."
ii. Trial counsel was ineffective for "failing to investigate and obtain evidence to demonstrate [Defendant's] innocence."
iii. Trial counsel provided ineffective assistance during the pretrial stage of the case.
iv. Trial counsel provided ineffective assistance by "failing to protect [Defendant's] Sixth Amendment rights in the advice and terms of [Defendant's] plea agreement."
4. Under the Delaware Superior Court Rules of Criminal Procedure, a Motion for Postconviction Relief can be barred for time limitations, repetitive motions, procedural defaults, and former adjudications.Motions exceed time limitations if they are filed more than one year after the conviction is finalized or they assert a newly recognized, retroactively applied right more than one year after it is first recognized. A motion is considered repetitive and therefore barred if it asserts any ground for relief "not asserted in a prior postconviction proceeding." Repetitive motions are only considered if it is "warranted in the interest of justice." Grounds for relief "not asserted in the proceedings leading to the judgment of conviction" are barred as procedural default unless movant can show "cause for relief" and "prejudice from [the] violation." Grounds for relief formerly adjudicated in the case, including "proceedings leading to the judgment of conviction, in an ...