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State v. Desmond

Superior Court of Delaware

May 1, 2019

STATE OF DELAWARE
v.
CHRISTOPHER DESMOND

          Jenna R. Milecki, Esquire, Deputy Attorney General

          Christopher Desmond, Pro Se Defendant

          ORDER

          Diane Clarke Streett, Judge.

         This 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 DISMISSED.

         It appears that:

         1. On June 12, 1986, Christopher Desmond (the "Defendant") entered a guilty plea to the charge of Escape After Conviction.[1] On August 11, 1989, he was resentenced to a term of sixty (60) days at Level V.

         2. Defendant did not appeal his sentence and his sentence ended on November 30, 1995.[2]

         3. On January 14, 2019, approximately thirty (30) years after his resentencing, Defendant filed a Motion for Postconviction Relief.[3]

         4. On 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.[4]

         5. The 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.[5] 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 Conviction charge.

         6. Case 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".[6] This is irrespective of whether the conviction was used to enhance another sentence.[7] Here, in view of the fact that Defendant has completed his sentence for Escape After Conviction, Defendant's Motion for Postconviction Relief is denied.

         7. 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, [8] the Court must first determine if the motion is procedurally barred in other ways.

         8. Here, under Superior Court Criminal Rule 6l(i)[9] 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 [p]rejudice..."[10]

         9. 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.[11]

         10. 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.

         11. 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.[12]

         12. In the instant Motion, Defendant asserts that the Third Circuit's holding in Adams v. Carney ("Adams")[13] 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."[14]

         13. 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 conviction.

         14. Defendant cites several U.S. Supreme Court cases that he claims support his contention that the holding in Adams invalidates his conviction.[15]

         15. The 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]."[16]

         16. The 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.[17]

         17. In State v. Thomas F. Kane and Nathan McNeil ("Kane"),[18] the Delaware Superior Court examined the holding of Adams.[19] 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."[20] 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."[21] In addition, the Superior Court, in Kane, noted that Judge McKee, in his Adams concurrence, [22] wrote that "[p]raise for the Delaware judiciary is nearly universal, and it is well deserved. Scholars and academics routinely refer to ...


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