Submitted: April 8, 2019
Below-Superior Court of the State of Delaware Cr. ID No.
STRINE, Chief Justice; SEITZ and TRAYNOR, Justices.
F. TRAYNOR JUSTICE
consideration of the appellant's opening brief, the
State's motion to affirm, and the record on appeal, it
appears to the Court that:
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.
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.
appeal, this Court reversed and remanded for a new
trial. 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.
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.
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. 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
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.
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. 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
argues that Tier III sex offender registration imposes
collateral legal disabilities or burdens, as compared with
Tier II registration, and therefore he ...