Submitted: July 20, 2018
Augusthy, Esquire, Deputy Attorney General, Department of
Justice, Wilmington, Delaware, Attorney for the State.
Tervaughn C. Sturgis, James T. Vaughn Correctional Center,
Smyrna, Delaware, pro se.
COMMISSIONER'S REPORT AND RECOMMENDATION THAT
DEFENDANT'S MOTION FOR POSTCONVICTION RELIEF SHOULD BE
KATHARINE MAYER, COMMISSIONER
20th day of August, 2018, upon consideration of
Defendant's Motion for Postconviction Relief, it appears
to the Court that:
FACTS AND PROCEDURAL HISTORY
November 4, 2003, Defendant plead guilty to Robbery First
Degree and agreed to immediate sentencing. As a result of the
plea and Defendant's agreement to 20 years at Level V,
Defendant avoided an habitual offender determination, would
have otherwise been eligible for life imprisonment and the
remaining charges were dismissed.
the time of the plea, Defendant executed a
Truth-in-Sentencing Form and acknowledged that he was freely
and voluntarily pleading guilty to the charge of Robbery
First Degree, that he was not promised anything in exchange
for the plea, and that he was waiving certain fundamental
Defendant subsequently filed three (3) Motions to Modify
Sentence,  a Petition for Computation with the Board
of Pardons,  and most recently a Motion for
Postconviction Relief (the "Motion").
Defendant's Motion presents the following arguments: (i)
Defense counsel was ineffective when he failed to challenge
the State's improper charging for the offense; and (ii)
the Trial Court illegally sentenced Defendant. Essentially,
Defendant believes the State failed to adequately charge the
crime of Robbery because the Indictment alleged Defendant
deprived the victim of his "property" whereas the
Affidavit of Probable Cause specifically referenced
"property consisting of USC (or United States
Currency)" and the Affidavit report stated
"approximately $70 USC". Defendant submits that
"the property was simply 'U.S. Currency' and not
'property' as the indictment indicates."
Defendant believes his counsel was ineffective for not
challenging this inconsistency, and that he should have moved
to suppress the Indictment and/or contested the photo lineup
based upon the State's failure to adequately charge the
correct robbery count.
Before considering the merits of a claim, the Court must
first determine whether there are any procedural bars to the
Motion. There are several procedural bars
applicable to Defendant's arguments and as such, the
Court should not consider the merits of the
claims. Moreover, pursuant to Super. Ct. Crim. R.
61(d)(5) the Motion may be summarily dismissed because it
plainly appears from the record in the case that movant is
not entitled to relief.
an initial matter, Defendant's Motion is barred by Super.
Ct. Crim. R. 61(i)(1) for having been filed more than one
year after the judgment of conviction became final.
Defendant's conviction became final thirty days after
sentencing or December 4, 2003. This Motion, having been filed
more than fourteen (14) years later, is untimely.
Further, pursuant to Super. Ct. Crim. R. 61(i)(3) and (4),
any ground for relief that was not previously raised is
deemed waived, and any claims that were formerly adjudicated,
whether in the proceedings leading to the judgment of
conviction, in an appeal, in a postconviction proceeding, or
in a federal habeas corpus proceeding, are thereafter barred.
Defendant has challenged his sentence no less than three (3)
times through motions over a period of years, each of which
were denied. The legality of his sentence has been formerly
adjudicated and should not be re-considered. Defendant's