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State v. Roten

Superior Court of Delaware

June 26, 2018

State of Delaware
v.
Ben Roten,

          SUBMITTED: June 6, 2018

          RICHARD F. STOKES JUDGE

         Dear Mr. Roten:

         Defendant Ben Roten ("Defendant") has filed his fourth Motion for Postconviction Relief pursuant to Superior Court Criminal Rule 61 ("Rule 61 ").[1] For the reasons expressed below the motion is DENIED.

         On August 6, 2004, Defendant pled guilty to Assault in the First Degree and Aggravated Menacing. On September 24, 2004, Defendant filed a. pro se motion to withdraw his guilty plea. That Motion was denied by the Superior Court on the same day. Defendant was sentenced as follows: for Assault in the First Degree, twenty-five years at Level Five; for Aggravated Menacing, five years at Level Five, suspended for six months at the Level Four Crest Program after completion of the Key Program, followed by one year at Level Three. Defendant appealed the Superior Court's denial of his Motion to Withdraw Guilty Plea to the Delaware Supreme Court on November 3, 2004. On September 15, 2005, the Supreme Court affirmed the decision.[2]

         On February 27, 2006, Defendant filed his first Postconviction Motion. On May 18, 2006, the Superior Court denied Defendant's Motion.[3] On June 1, 2011, Defendant filed his second Postconviction Motion. On July 25, 2011, that Motion was denied.[4] On July 30, 2013, Defendant filed his third Postconviction Motion. On September 3, 2013, that Motion was also denied.[5]

         On June 6, 2018, Defendant filed his fourth Motion for Postconviction Relief. He claims that the Court violated Superior Court Criminal Rule 32 in not allowing him to review his Pre-Sentence Report ("PSI") before sentencing. Additionally, Defendant believes that the Court wrongfully considered uncorroborated statements made by the victim in the PSI in order to enhance his sentence.[6]

         The first step in evaluating a motion under Rule 61 is to determine whether any of the procedural bars listed in Rule 6l(i) will force the motion to be procedurally barred.[7] Both Rule 6l(i)(1) and (2) require this motion to be summarily dismissed. First, a motion for postconviction relief cannot be filed more than one year after the judgment is final.[8] Given that Defendant's conviction was finalized nearly 14 years ago, his motion is time-barred. Additionally, any successive motion for postconviction relief is barred by Rule 6l(i)(2) unless the Defendant has:

(i) [pled]...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) [pled]...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 and renders the conviction or death sentence invalid.[9]

         Thus, in order to overcome the Rule 6l(i)(2) bar, Defendant would have to show that either new evidence exists that creates a strong inference of actual innocence or that a new rule of constitutional law applied retroactively to his case. Defendant is unable to meet either criteria. Furthermore, the Delaware Supreme Court stated in Huffman v. State that claims concerning Rule 32 are outside the scope of Rule 61.[10]

         Considering the foregoing, Defendant's Motion for Postconviction relief is DENIED. As Defendant's Motion for Postconviction relief is denied, Defendant's Motion for Appointment of Counsel is also DENIED.

         IT ...


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