Submitted: November 28, 2017
Defendant's Third Motion for Postconviction Relief.
Chapman, Esquire, Deputy Attorney General, Department of
Justice, Wilmington, Delaware, Attorney for the State.
Wright, James T. Vaughn Correctional Institution, Smyrna,
Delaware, pro se.
Richard R. Cooch, R.J.
26th day of February 2018, upon consideration of
Defendant's Third Motion for Postconviction Relief, it
appears to the Court that:
1. The facts of this case were set forth in this
Court's earlier opinion on Defendant's first Motion
for Postconviction Relief as follows:
Defendant, Donald Wright, was convicted on December 12,
2008, following a jury trial in this Court of eight counts of
Rape First Degree, Rape Second Degree, Unlawful Sexual
Contact First Degree and Continuous Sexual Abuse of a Child.
These charges arose from events that took place between April
2006 and November 2007, during which time Defendant sexually
abused his minor stepdaughter. The victim testified at trial
that Wright repeatedly engaged in oral and vaginal
intercourse with her during this period of time. Defendant
admitted at trial that he engaged in oral sex with the victim
"four times, had ejaculated on her stomach, touched her
breasts, rubbed his penis on the outside of her vagina and
placed his fingers inside her vagina."
On February 12, 2009, Defendant was sentenced to fifteen
years at Level V on each count of Rape First Degree and
Continuous Sexual Abuse of a Child. Defendant was also
sentenced to ten years at Level V followed by five years of
probation for the single count of Rape Second Degree.
Defendant appealed his case to the Delaware Supreme Court and
his convictions were affirmed on August 28,
his first Motion for Postconviction Relief, Defendant
asserted three grounds for postconviction relief: (1)
"movant was prejudiced when counsel failed to file a
timely objection pursuant to Superior Court Criminal Rule
12(b)(2) challenging the vagueness of [the] indictment. ...
(2) movant was prejudiced when counsel on direct appeal
failed to challenge the vagueness of [the] indictment as to
counts 1 through 8; . . . and (3) movant was prejudiced when
counsel on direct appeal failed to challenge the vagueness of
[the] indictment as to count 38."
Court denied Defendant's first Motion for Postconviction
Relief. That decision was affirmed by the Delaware Supreme
November 16, 2016, Defendant filed his second Motion for
Postconviction Relief and a Motion for Appointment of
Counsel. In his second Motion for Postconviction Relief,
Defendant moved for relief on the grounds that this Court
lacked jurisdiction to "convict or punish" him and
essentially that new evidence exists that would create a
strong inference that he is actually innocent of the crimes
charged. This Court denied Defendant's second
Motion for Postconviction Relief, finding that Defendant
failed to demonstrate that either of the exceptions to a
subsequent motion pursuant to Del. Superior Court Criminal
Rule 61(d)(2) applies in this case.
61 is the remedy for defendants "in custody under a
sentence of this court seeking to set aside the judgment of
conviction . . . ." This Court "must first consider
the procedural requirements of Rule 61 before addressing any
substantive issues." The procedural bars of Rule 61 include
timeliness,  successiveness,  procedural default,
and former adjudication. A motion is untimely if it is filed
more than one year after the conviction is finalized or
defendant asserts a new constitutional right that is
retroactively applied more than one year after it is first
recognized. A motion is successive if it is a
"second or subsequent motion." If any of
these bars apply, the ...