SUBMITTED: June 6, 2018
RICHARD F. STOKES JUDGE
Ben Roten ("Defendant") has filed his fourth Motion
for Postconviction Relief pursuant to Superior Court Criminal
Rule 61 ("Rule 61 "). For the reasons expressed below
the motion is DENIED.
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.
February 27, 2006, Defendant filed his first Postconviction
Motion. On May 18, 2006, the Superior Court denied
Defendant's Motion. On June 1, 2011, Defendant filed his
second Postconviction Motion. On July 25, 2011, that Motion
was denied. On July 30, 2013, Defendant filed his
third Postconviction Motion. On September 3, 2013, that
Motion was also denied.
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.
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. 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. 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
(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.
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
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.