Submitted: January 24, 2018
SYLVESTER MILLER, PRO SE.
COMMISSIONER'S REPORT AND RECOMMENDATION ON
DEFENDANT'S FOURTH MOTION FOR POSTCONVICTION
24th day of April 2018, upon consideration of
petitioner Sylvester Miller's motion for postconviction
relief (hereinafter "Motion"), I find and recommend
and Procedural History
a jury trial before the Honorable Judge William C. Carpenter,
Jr., Miller was convicted of six counts of Rape First Degree
and one count of Continuous Sexual Abuse of a Child. On June
14, 2005, Miller was sentenced to, in total, 92 years of
unsuspended time at Level Five. In his Motion, Miller
indicated that he did not appeal his conviction to the
Delaware Supreme Court. However, I discovered that Miller
did, in fact, appeal his conviction and that it was affirmed
on March 9, 2006.
facts concerning Miller's case were recited in detail in
the Supreme Court Opinion so I will not repeat them here; nor
are they relevant. What is important for purposes of this
report is that Miller was indicted on eight counts of Rape
First Degree pursuant to 11 Del. C. 773(a),
subsection six (6)- position of trust or authority-as that
crime existed in 2004.
the time of his conviction, Miller has filed three motions
for postconviction relief and one for correction of illegal
sentence-all of which were denied by Judge Carpenter. In his
now fourth Motion, Miller makes the following argument,
quoted verbatim, for postconviction relief:
Ground One: From the inception the Court lacked jurisdiction
to try or convict defendant. Sentence was imposed on
defendant in an unconstitutional manner which violated both
5th and 14th Amendments constitutional
rights under the law.
Motion is controlled by Superior Court Criminal Rule 61.
Before addressing the merits of a motion for postconviction
relief, a reviewing court must first apply the procedural
bars of Rule 61.
61(i)(1) requires a motion for postconviction to be filed not
more than one year from the date the judgment of conviction
becomes final. In this case, Miller's Motion is untimely
as it was not filed within one year of the date his
conviction was affirmed by the Delaware Supreme Court-i.e.
March 6, 2006.
61(i)(2) prohibits second or subsequent postconviction
motions unless the motion satisfies subparagraphs (2)(i) or
(2)(ii) of subdivision (d) of the Rule (i.e. the motion
pleads with particularity that new evidence exists or that a
new rule of constitutional law made retroactive applies to
movant's case). The instant Motion is Miller's fourth
motion for postconviction relief and neither of the
exceptions under this subdivision has been alleged by Miller.
Miller does argue, however, is that his Motion is not
procedurally barred from consideration on the merits under
Rule 61(i)(5) because, the Court "lacked
jurisdiction" to try his case in the first
place. Miller's argument, as best I can
discern from his Motion, is that he was arrested, tried, and