Submitted: May 5, 2017
REPORT AND RECOMMENDATION THAT DEFENDANT'S MOTION FOR
POSTCONVICTION RELIEF SHOULD BE DENIED.
D. Amin, Esquire, Deputy Attorney General, Department of
Justice, Wilmington, Delaware, Attorney for the State.
Jy'Aire D. Smith, Sussex Correctional Institution,
Georgetown, Delaware, pro se.
12th day of June 2017, upon consideration of Defendant's
Motion for Postconviction Relief, it appears to the Court
FACTS AMD PROCEDURAL HISTORY
July 21, 2014, Defendant Jy'Aire D. Smith was indicted on
the charges of Possession of a Firearm by a Person Prohibited
("PFBPP") and Possession of Ammunition by a Person
December 16, 2014, Defendant pled guilty to the charge of
PABPP. As part of the plea agreement, the State agreed to
dismiss the PFBPP charge.
convicted of the PFBPP charge, Defendant was facing a minimum
mandatory prison term of 10 years. By pleading guilty only to
the PABPP charge, Defendant was not exposed to any minimum
mandatory time and his exposure to prison was capped at a
maximum of 8 years.
charges stemmed from the seizure of a gun and ammunition from
Defendant's belongings at the residence where he was
staying. The State had photographs of Defendant holding a gun
with unique characteristics. The gun seized from
Defendant's residence had the same unique characteristics
as the gun Defendant was holding in the
photographs. The State's evidence against Defendant
was strong and he faced the likelihood of being convicted of
both charges at trial thereby facing a prison sentence of not
less than 10 years and up to 33 years.
After the plea was entered but before sentencing, Defendant
requested the appointment of new counsel to represent
The court granted Defendant's request and appointed new
counsel to represent Defendant.
Following a presentence investigation, on June 26, 2015,
Defendant was sentenced to a total of eight years at Level V,
suspended after three years, followed by probation.
Defendant did not file a direct appeal to the Delaware
RULE 61 MOTION
June 27, 2016, Defendant timely filed the subject Rule 61
motion. In the subject motion, Defendant claims:
1) that his counsel was ineffective because counsel did not
provide him with his Rule 16 discovery packet and because
defense counsel told him that counsel did not want to go to
trial; 2) that he was sentenced incorrectly because his
sentence exceeded sentencing guidelines; and 3) that his new
attorney did not have enough time to prepare for trial after
his previous attorney was removed from the case and that the
whole process should have started all over again.
Before making a recommendation, the record was enlarged and
Defendant's counsel were both directed to submit
Affidavits responding to Defendant's ineffective
assistance of counsel claims. Thereafter, the State filed a
response to the motion. Finally, Defendant was afforded an
opportunity to submit a reply thereto.
claims raised in the subject motion are procedurally barred,
waived and without merit.
One of the Claims Raised by Defendant is Procedurally
Prior to addressing the substantive merits of any claim for
postconviction relief the court must first determine whether
the defendant has met the procedural requirements of Superior
Court Criminal Rule 61. If a procedural bar exists, then the
claim is barred, and the Court should not consider the merits
of the postconviction claim.
Rule 61(i)(3) required that Defendant raise his claims, with
the exception of his ineffective assistance of counsel
contentions, on direct appeal. Defendant's ineffective
assistance of counsel claims are not procedurally barred by
Rule 61(i)(3) because a Rule 61 motion is the appropriate
vehicle for raising these claims.
to Defendant's claim that he was sentenced incorrectly
because his sentence exceeded sentencing guidelines, this
claim is procedurally barred by Rule 61(i)(3), for
Defendant's failure to raise it on direct appeal. This
claim was known to Defendant since the date of his sentencing
on June 25, 2015. Therefore, there is no justifiable reason
for Defendant's failure to raise the issue on direct
appeal if Defendant genuinely believed the claim had any
a procedural bar exists, the court will not consider the
merits of the claim unless the defendant can show that an
exception found in Rule 61(i)(5) applies. Rule 61(i)(5)
provides that consideration of an otherwise procedurally
barred claim is limited to claims that the court lacked
jurisdiction, or to claims that new evidence exists that
creates a strong inference that the defendant is actually
innocent of the underlying charges for which he was
convicted; or to claims that a new rule of constitutional law
applicable to that defendant's case would render his
the subject motion, Defendant is unable to overcome the
procedural hurdles of Rule 61(i)(3) by showing an exception
in Rule 61(i)(5) applies. Defendant has not established that
the court lacked jurisdiction, that any new evidence existed
to create a strong inference that Defendant is actually
innocent of the underlying charges, or that a new rule of
constitutional law exists that would render his conviction
invalid. Defendant's claim that he was sentenced
incorrectly is procedurally barred.
All of Defendant's Claims Were Waived Upon Entry of His
addition to Defendant's claim that he was sentenced
incorrectly being procedurally barred, all of Defendant's
claims were waived upon the entry of Defendant's guilty
Although Defendant now claims that his plea was somehow not
informed due to his counsel's ineffectiveness,
Defendant's Rule 61 claims are belied by the
representations he made at the time he accepted his plea,
admitted his guilt, and was sentenced.
defendant is bound by his answers on the guilty plea form and
by his testimony at the plea colloquy in the absence of clear
and convincing evidence to the contrary. In this case,
the Truth-in-Sentencing Guilty Plea Form, Plea Agreement and
plea colloquy reveal that Defendant knowingly, voluntarily