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State v. Miller

Superior Court of Delaware

August 27, 2018

STATE OF DELAWARE
v.
ROBERT MILLER, Defendant.

          Submitted: August 22, 2018

         Upon Defendant's Motion to Withdraw Guilty Plea, SUMMARILY DISMISSED.

          Robert Miller, pro se, Wilmington, DE.

          Renee Hrivnak, Esquire, Deputy Attorney General, Department of Justice, 820 N. French St., Wilmington, Delaware, Attorneys for the State.

          ORDER

          Ferris W. Wharton, J.

         This 27th day of August, 2017, upon consideration of Defendant's Motion to Withdraw Guilty Plea and the record in this matter, it appears to the Court that:

         1. Defendant Robert Miller ("Miller") was indicted by the Grand Jury on a single count of assault second degree. On June 9, 2015, Miller pled guilty to that charge. In exchange, the State dropped a charge of offensive touching in the Court of Common Pleas and agreed to cap its sentencing recommendation of unsuspended incarceration at three years. On December 5, 2015, the Court sentenced Miller to eight years of incarceration pursuant to 11 Del. C. § 4204(k), followed by six months at Level IV pursuant to 11 Del. C. § 4204(1).

         2. Miller appealed his conviction to the Delaware Supreme Court. That court entered an Order affirming his conviction on May 18, 2016.[1] A Motion for Postconviction Relief ("first PCR motion") pursuant to Superior Court Criminal Rule 61, Miller's first, was timely filed on December 14, 2015. The first PCR motion raised a single issue of ineffective assistance of counsel and did not request appointment of counsel.

         3. In his first PCR motion, Miller claimed that: (1) counsel failed to obtain hospital records of the victim that would have shown her injuries were old, despite being asked to obtain them; (2) counsel never responded to voice mail messages; (3) counsel only discussed taking the plea with Miller; and (4) after sentencing, Miller asked counsel about an appeal without response.[2] This Court denied the motion on October 18, 2016.[3] Miller's untimely appeal of that decision was dismissed.[4]

         4. Miller filed his second Motion for Postconviction Relief ("second PCR motion") on September 25, 2017.[5] In it he incorrectly represented that the basis of his conviction was the finding of a judge in a non-jury trial, when, in fact, Miller entered a guilty plea.[6] He raised a single claim for relief - that there was newly discovered evidence that the victim's wounds were old, occurring in 2009 -2010, and that she was seen for these injuries at the Wilmington Hospital.[7] The Court summarily dismissed the second PCR motion on September 27, 2017.[8] It does not appear that Miller appealed from that decision.

         5. Miller filed this motion, which he captions Motion to Withdraw Guilty Plea, on August 22, 2018.[9] Because requests to withdraw a plea of guilty after sentencing must be made by motion under Superior Court Rule 61, the Court treats this motion as Miller's third PCR motion.[10] In it Miller stubbornly returns to his pointless effort to convince the Court of something that plainly just is not true - that the victim's injuries in this case were actually pre-existing injuries for which medical records were never subpoenaed. But he adds a new wrinkle - that the offense should have been treated as either assault third degree because no weapon was involved and there was no intent to cause physical injury, or offensive touching.[11]

         6. Before addressing the merits of a defendant's motion for postconviction relief, the Court must first apply the procedural bars of Superior Court Criminal Rule 61(i).[12] If a procedural bar exists, then the Court will not consider the merits of the postconviction claim.[13]

         7. Under Delaware Superior Court Rules of Criminal Procedure, a motion for postconviction relief can be barred for time limitations, successive motions, procedural defaults, and former adjudications. A motion exceeds time limitations if it is filed more than one year after the conviction becomes final or if it asserts a newly recognized, retroactively applied right more than one year after it was first recognized.[14] A second or subsequent motion is considered successive and therefore barred and subject to summary dismissal unless the movant was convicted after a trial and "pleads with particularity that new evidence exists that the movant is actually innocent" or "pleads 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 ... invalid."[15] Grounds for relief "not asserted in the proceedings leading to the judgment of conviction" are barred as procedurally defaulted unless the movant can show "cause for relief and "prejudice from [the] violation."[16] Grounds for relief formerly adjudicated in the case, including "proceedings leading to the judgment of conviction, in an appeal, in a post-conviction proceeding, or in a federal habeas corpus hearing" are barred.[17]

         8. Summary dismissal is appropriate if it plainly appears from the motion for postconviction relief and the record of prior proceedings in the case ...


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