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Richardson v. State

Supreme Court of Delaware

May 14, 2019

ERNEST RICHARDSON, Defendant Below, Appellant,
v.
STATE OF DELAWARE, Plaintiff Below, Appellee.

          Submitted: April 8, 2019

          Court Below-Superior Court of the State of Delaware Cr. ID No. 0909018120 (N)

          Before STRINE, Chief Justice; SEITZ and TRAYNOR, Justices.

          ORDER

          GARY F. TRAYNOR JUSTICE

         After consideration of the appellant's opening brief, the State's motion to affirm, and the record on appeal, it appears to the Court that:

         (1) The appellant, Ernest Richardson, appeals from the Superior Court's order dated January 17, 2019, denying his third motion for postconviction relief under Superior Court Criminal Rule 61. The State has filed a motion to affirm the Superior Court's judgment on the ground that it is manifest on the face of Richardson's opening brief that the appeal is without merit. We agree and affirm, though on a different basis than that articulated by the Superior Court.

         (2) In 2010, a Superior Court jury found Richardson guilty of Rape First Degree, two counts of Rape Second Degree, and Rape Fourth Degree. The jury found Richardson not guilty of Sexual Solicitation of a Child and Unlawful Contact Second Degree. The Superior Court sentenced Richardson to fifty years of Level V incarceration, followed by probation.

         (3) On appeal, this Court reversed and remanded for a new trial.[1] On remand, Richardson pleaded no contest to Rape Fourth Degree and Unlawful Sexual Contact First Degree. In exchange, the State dismissed the other charges. The plea agreement form indicates that Richardson would be required to register as a sex offender under 11 Del. C. §§ 4120, 4121 and that his Risk Assessment Tier would be Tier II. The Superior Court sentenced Richardson as follows: for Rape Fourth Degree, to fifteen years of Level V incarceration, suspended after thirty months for two years of probation, and for Unlawful Sexual Contact First Degree, to eight years of Level V incarceration, suspended after eighteen months for two years of probation. The sentence also required Richardson to "register as [a] sex offender pursuant to statute." The sentencing order does not state the applicable Risk Assessment Tier, although during the sentencing hearing counsel and the Superior Court repeatedly stated that Richardson would be required to register as Tier II.

         (4) When the date on which Richardson would be released from prison and begin serving probation was approaching, the Department of Correction apparently informed him that he would be required to register as a Tier III sex offender, rather than as Tier II. In 2013, he filed two motions seeking to modify the tier designation from Tier III to Tier II. Each of those motions was denied when Richardson failed to appear for the scheduled hearings.

         (5) In April 2015, Richardson filed a motion for postconviction relief in which he challenged the requirement that he register as a Tier III sex offender, rather than as Tier II. On November 4, 2015, the Superior Court dismissed that motion, holding that, under Superior Court Criminal Rule 61, only a person who is "in custody" may bring a motion for postconviction relief.[2] Because by that time Richardson had been discharged from probation and his case had been closed, the Superior Court held that he was not "in custody" and therefore lacked standing to seek postconviction relief. In February 2016, he filed a second motion for postconviction relief raising the same issues; the Superior Court dismissed that motion because he was not "in custody" and therefore lacked standing under Rule 61.

         (6) On December 3, 2018, Richardson filed a third motion for postconviction relief, again arguing that he should be required to register under Tier II and not Tier III or should be permitted to withdraw his no-contest plea. The Superior Court also dismissed that motion because he was not "in custody." Richardson has appealed.

         (7) The State argues that the Superior Court did not err by summarily dismissing Richardson's third postconviction motion on the grounds that Richardson was no longer "in custody" for his sentence in this case as required by Rule 61.[3] This Court has held that:

Under Delaware law, once a criminal sentence is completed, any postconviction claim with respect to that conviction is moot because the defendant is no longer "in custody or subject to future custody" as a result of that conviction. The only exception to the rule is when the defendant "suffers collateral legal disabilities or burdens." The defendant has the burden of "demonstrating specifically a right lost or disability or burden imposed, by reason of the instant conviction."[4]

         Richardson argues that Tier III sex offender registration imposes collateral legal disabilities or burdens, as compared with Tier II registration, and therefore he ...


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