Submitted: March 11, 2015
Court Below: Superior Court of the State of Delaware, in and for Sussex County Cr. ID No. 9406006950
Before STRINE, Chief Justice; HOLLAND, and VAUGHN, Justices
Leo E. Strine, Jr. Chief Justice
This 7th day of April 2015, upon consideration of the appellant's opening brief, the appellee's motion to affirm, and the record below, it appears to the Court that:
(1) The appellant, Richard Dean Phipps, filed this appeal from the Superior Court's denial of his second motion for postconviction relief under Superior Court Criminal Rule 61 ("Rule 61"). The State of Delaware has filed a motion to affirm the judgment below on the ground that it is manifest on the face of Phipps' opening brief that his appeal is without merit. We agree and affirm.
(2) In January 1995, a Superior Court jury found Phipps guilty of Unlawful Sexual Intercourse in the First Degree and Endangering the Welfare of a Child after hearing testimony that Phipps forced his nine-year old son to perform fellatio on him. Phipps was sentenced to forty years of Level V incarceration, suspended after thirty years for decreasing levels of supervision. On direct appeal, this Court affirmed the Superior Court's judgment.
(3) In February 1999, Phipps filed his first motion for postconviction relief under Rule 61. Phipps identified twelve grounds for postconviction relief, including error by the Superior Court, ineffective assistance of counsel, police misconduct, and prosecutorial misconduct. To support his claims that his son was coerced, suggestible, and unreliable, Phipps amended his postconviction motion to include a school psychologist's 1993 report on his son reflecting that his son had learning disabilities and low average overall cognitive ability. After receiving the affidavit of Phipps' former counsel, the Superior Court denied Phipps' motion for postconviction relief.
(4) In November 2014, Phipps filed his second motion for postconviction relief. Phipps also filed a motion for appointment of counsel and a motion for an evidentiary hearing. In his second motion for postconviction relief, Phipps raised or restated many of the claims contained in his first motion for postconviction relief. Phipps also asserted actual innocence based on his statements to police and his counsel, the 1993 psychological report on his son, and an April 18, 1994 police report provided to his counsel at the beginning of trial. The Superior Court concluded that Phipps' claims were procedurally barred under Rule 61 and denied the motion for postconviction relief.
(5) On appeal, Phipps argues: (i) his claims are not procedurally barred under Rule 61 because he pled a colorable claim of a miscarriage of justice based on newly discovered evidence of his actual innocence; (ii) his counsel was ineffective; (iii) the Superior Court erred in not holding a hearing under 11 Del. C. § 3507 and 11 Del. C. § 3508 on the reliability and voluntariness of his son's statements; (iv) the prosecution violated Brady v. Maryland by failing to turn over a police report until the beginning of trial; and (v) the Superior Court erred in denying Phipps' request for preparation of transcripts in this appeal.
(6) We review the Superior Court's denial of postconviction relief for abuse of discretion and questions of law de novo. The procedural requirements of Rule 61 must be considered before any substantive issues are addressed. Rule 61(d)(2) provides:
(2) Second or subsequent postconviction motions. A second or subsequent motion under this rule shall be summarily dismissed, unless the movant was convicted after a trial and the motion either:
(i) pleads with particularity that new evidence exists that creates a strong inference that the movant is actually innocent in fact of the acts underlying the charges of which he was convicted; or
(ii) pleads with particularity a claim that a new rule of constitutional law, made retroactive to cases on collateral review by the United States Supreme Court or the Delaware Supreme Court, applies to the movant's case ...