R. Milecki, Esquire, Deputy Attorney General
Christopher Desmond, Pro Se Defendant
Clarke Streett, Judge.
1st day of May, 2019, having considered Defendant's
Motion to Recuse, the State's Answer, Defendant's
Reply, and the record of this case, Defendant's Motion is
deemed an extension of his January 14, 2019 Motion for
Postconviction Relief and is SUMMARILY
June 12, 1986, Christopher Desmond (the
"Defendant") entered a guilty plea to the charge of
Escape After Conviction. On August 11, 1989, he was resentenced
to a term of sixty (60) days at Level V.
Defendant did not appeal his sentence and his sentence ended
on November 30, 1995.
January 14, 2019, approximately thirty (30) years after his
resentencing, Defendant filed a Motion for Postconviction
January 25, 2019, Defendant filed the instant Motion.
Although Defendant has captioned this as a Motion to Recuse,
the Court deems his argument to be an extension of his Rule
61 Motion for Postconviction Relief.
law is clear that, pursuant to Delaware Superior Court
Criminal Rule 61(a), a petitioner lacks standing to file a
Rule 61 motion if he has already served his
sentence. Here, Defendant has already served his
sentence (60 days) and, although he is serving other
sentences, he is no longer in custody for this Escape After
law also holds that a Defendant "loses standing to move
for postconviction relief under Rule 61 when . . . not in
custody for the underlying offense or challenged
sentence". This is irrespective of whether the
conviction was used to enhance another
sentence. Here, in view of the fact that Defendant
has completed his sentence for Escape After Conviction,
Defendant's Motion for Postconviction Relief is denied.
Nevertheless, the Court will briefly discuss the merits of
Defendant's claim. However, before considering the
specific allegations in Defendant's Motion for
Postconviction Relief,  the Court must first determine if the
motion is procedurally barred in other ways.
Here, under Superior Court Criminal Rule 6l(i) Defendant's
Motion is barred by subsections (i)(1) and (i)(3).
Defendant's Motion is untimely because it was filed more
than one year after his conviction became final, it does not
assert any "retroactively applicable right that is newly
recognized after [his] judgment of conviction became
final", was not asserted in the proceeding leading to
the judgment of conviction, and he has not shown
"[c]ause for relief from [this] procedural default and
Defendant pled guilty to this charge. The law is also clear
that a guilty plea waives any alleged errors or defects that
may have occurred prior to entry of the plea.
Here, Defendant signed a guilty plea form where he indicated
that he was of sound mind, not under the influence of alcohol
or drugs, and that he was satisfied with his attorney.
Moreover, he understood that the State's plea offer
included a recommendation of not more than sixty (60) days
and that he could be sentenced up to seven (7) years in jail
if convicted by a trial. The Court sentenced Defendant to the
State's recommendation. Defendant received the benefit of
the bargain when he accepted the plea offer, and he was
sentenced to sixty (60) days at Level V.
the instant Motion, Defendant asserts that the Third
Circuit's holding in Adams v. Carney
("Adams") announces a new rule of
constitutional law that applies to his case. As such,
Defendant must "plea[d] 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 [his] case and renders
[his] conviction ... invalid."
Defendant, citing Adams, asserts that the Court that
accepted his plea and the Court reviewing his Rule 61 Motion
are not lawfully constituted. Specifically, Defendant appears
to contend that the prior Judge and current Judge presiding
over his case were unconstitutionally appointed to the
Superior Court, that the Attorney General and Deputy Attorney
General knew that the appointment of the current Judge is
unconstitutional, and that the entire Superior Court Bench
should be recused from considering his January 14, 2019 Rule
61 Motion. Defendant seeks vacatur and dismissal of his 1989
Defendant cites several U.S. Supreme Court cases that he
claims support his contention that the holding in
Adams invalidates his conviction.
State asserts that the court in Adams "did not
find the [Delaware] courts to be unconstitutional" and
that its holding "has no effect on the continued
qualification and constitutionality of [Superior Court]
judges under [Delaware Constitution] Art. IV, §2 [which
controls the constitutional qualification of judges for the
various courts of the state]."
State also asserts that the U.S. Supreme Court cases cited by
Defendant are factually distinguishable from his case and do
not support his argument.
State v. Thomas F. Kane and Nathan McNeil
("Kane"), the Delaware Superior Court
examined the holding of Adams. In
Kane, the defendants suggested that Adams
"stands for the proposition that all sitting Delaware
judges of any court, lack constitutional authority to preside
over the cases before them." However, the Superior
Court, in Kane, held that the Adams'
holding does not "speak to or conclude as to the
legitimacy of Delaware judges, nor does [the] court make any
rinding whatsoever, in relation to Art. IV, §
2." In addition, the Superior Court, in
Kane, noted that Judge McKee, in his Adams
concurrence,  wrote that "[p]raise for the
Delaware judiciary is nearly universal, and it is well
deserved. Scholars and academics routinely refer to