Submitted: October 31, 2014
Christopher Parker, Esquire, Deputy Attorney General, Department of Justice, Wilmington, Delaware, Attorney for the State.
Christopher S. Koyste, Law Office of Christopher S. Koyste LLC, Wilmington, DE, Attorney for the Defendant.
Eric M. Davis Judge
This 30th day of January, 2015, upon consideration of the Motion for Postconviction Relief, the Amended Motion for Postconviction Relief, the Memorandum of Law in Opposition to Defendant Gerald Szubielski's Petition for Post-Conviction Relief, Petitioner Gerard Szubielski's Reply to the State's Memorandum in Opposition to Petitioner's Amended Motion for Postconviction Relief, and, the entire record in this case:
1. The Motion for Postconviction Relief and the Amended Motion for Postconviction Relief are Gerard Szubielski's fourth motion seeking relief under Rule 61 of the Superior Court Rules of Criminal Procedure, but only his first motion since he was resentenced on March 9, 2012.
2. On May 25, 2006, after dark, Mr. Szubielski was involved in a vehicle chase with the New Castle County Police Department. During the chase, which reached speeds in excess of 90 miles per hour, Mr. Szubielski sped into a lighted construction zone, lost control of the vehicle, and struck Ron Cirillo. Mr. Cirillo was sent flying through the air and onto a construction vehicle, and suffered serious injuries. After striking Mr. Cirillo, Mr. Szubielski fled on foot, and was apprehended by officers a short time later.
3. On January 1, 2007, a jury found Mr. Szubielski guilty of Assault in the First Degree.
4. On March 2, 2007, the Court granted the State's motion to declare Mr. Szubielski a habitual offender pursuant to 11 Del. C. § 4214(b), and sentenced Mr. Szubielski to life imprisonment.
5. Both at the trial and sentencing Mr. Szubielski was represented by James Haley, Esquire ("Trial Counsel").
6. On August 14, 2007, Mr. Szubielski filed his first pro se motion for postconviction relief (the "First Rule 61 Motion") under Superior Court Criminal Rule 61 ("Rule 61"). In the First Rule 61 Motion, Mr. Szubielski claimed, that he received ineffective assistance of counsel because his Trial Counsel failed to inform him in writing of his right to appeal his March 2, 2007 sentence, and that Trial Counsel failed to have the vehicle involved in the accident tested for a malfunction. The Court requested that Trial Counsel file an affidavit in response to Mr. Szubielski's allegations. Trial Counsel filed an affidavit and averred that although Mr. Szubielski never requested that an appeal be filed on his behalf, Trial Counsel admitted that he had failed to advise Mr. Szubielski in writing of his right to appeal.
7. The Court granted Mr. Szubielski's First Rule 61 Motion on October 22, 2007.In doing so, the Court vacated the earlier sentence, resentenced him to the same terms and conditions, but made the effective date October 22, 2007, thereby allowing Mr. Szubielski thirty days from that date to file an appeal to the Supreme Court. Mr. Szubielski was not present at the resentencing, nor was counsel appointed for the purposes of filing a direct appeal.
8. Mr. Szubielski did not file an appeal within thirty days.
9. On June 2, 2008, Mr. Szubielski filed his second pro se Motion for Postconviction Relief (the "Second Rule 61 Motion"). In the Second Rule 61 Motion, Mr. Szubielski claimed that he never received the Court's earlier decision that permitted him thirty days to file an appeal. Mr. Szubielski sought appointment of counsel to assist him in filing an appeal. Mr. Szubielski also raised four grounds for relief that: (1) that his attorney failed to investigate mechanical problems with his vehicle, which, if the jury believed the testimony, would have affected the jury's determination of guilt; (2) that the Judge failed to have an adequate colloquy with Mr. Szubielski; (3) that Mr. Szubielski's attorney failed to file a notice of appeal to the Supreme Court pursuant to Supreme Court Rule 26, failed to advise Mr. Szubielski of his right to appeal, and failed to withdraw if he believed that an appeal was without merit; and (4) that Mr. Szubielski should have been charged with vehicular assault rather than assault in the first degree. On June 20, 2008, the Court denied Mr. Szubielski's Second Rule 61 Motion. The Superior Court held that Szubielski's claim was procedurally barred, and that Szubielski could not overcome the presumption that the order was properly mailed to him.
10. Mr. Szubielski appealed the denial to the Delaware Supreme Court (the "Supreme Court"). On December 11, 2008, the Supreme Court dismissed Mr. Szubielski's appeal for ...