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State v. Richardson

Superior Court of Delaware

June 7, 2019

STATE OF DELAWARE, Plaintiff,
v.
ERNEST A. RICHARDSON, Defendant.

          Submitted: May 13, 2019

         COMMISSIONER'S REPORT AND RECOMMENDATION THAT DEFENDANT'S MOTION FOR POSTCONVICTION RELIEF SHOULD BE DENIED.

          Amanda J. DiLiberto, Esquire, Deputy Attorney General, Department of Justice, Wilmington, Delaware, Attorney for the State.

          Ernest Richardson, James T. Vaughn Correctional Center, Smyrna, Delaware, pro se.

          PARKER, COMMISSIONER

         This 7th day of June, 2019, upon consideration of Defendant's Motion for Postconviction Relief, it appears to the Court that:

         PRIOR CRIMINAL ACTION RESULTING IN 2012 PLEA

         1. Defendant Ernest Richardson was convicted of sexually assaulting two young girls, ages 6 and 10, in Criminal Action No. 0909018120. Following a jury trial in that case, Richardson was sentenced to 50 years in prison. On appeal, the Delaware Supreme Court reversed and remanded Richardson's case for a new trial.[1]

         2. On remand, in 2012, 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 indicated 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.[2]Richardson was sentenced to a total of 48 months of unsuspended prison time followed by probation.[3] The sentencing order did not state the applicable Risk Assessment Tier, although during the sentencing hearing counsel and Superior Court repeatedly stated that Richardson would be required to register as a Tier II sex offender.[4]

         3. After Richardson was released from prison, the Department of Corrections informed Richardson that he would be required to register as a Tier III sex offender, rather than as a Tier II sex offender.[5]

         4. In 2013, Richardson filed two motions seeking to modify the tier designation from Tier III to Tier II. Both of these motions were denied because Richardson failed to appear for the scheduled hearings.[6]

         5. In April 2015, Richardson filed a Rule 61 motion for postconviction relief in which he challenged the requirement that he register as a Tier III sex offender, rather than as Tier II. That motion was dismissed. The Superior Court held that because Richardson had been discharged from probation and his case closed, he was not "in custody" and therefore lacked standing to seek postconviction relief.[7]

         6. In February 2016, Richardson filed a second Rule 61 motion for postconviction relief raising the same issue. The Superior Court dismissed that second motion because Richardson was not "in custody" and therefore lacked standing under Rule 6l.[8]

         7. On December 3, 2018, Richardson filed a third Rule 61 motion for postconviction relief, again arguing that he should be required to register under Tier II and not Tier III or that he should be permitted to withdraw his no-contest plea. The Superior Court dismissed that motion and, on appeal, the Delaware Supreme Court affirmed that dismissal.[9]

         8. The Delaware Supreme Court held that Richardson's third Rule 61 motion for postconviction relief was procedurally barred since he did not meet the threshold pleading requirements for proceeding with that motion. Richardson had not pled with particularity the existence of new evidence that created a strong inference of actual innocence or a new rule of constitutional law that applied to his case. He did not assert that the Superior Court lacked jurisdiction to enter a judgment or sentence him. The Delaware Supreme Court noted that the Superior Court had previously adjudicated his challenge to the Tier III designation, from which he did not appeal.[10]

         9. The Delaware Supreme Court held that Richardson's claim that he should be tiered as a Tier II rather than a Tier III sex offender as a result of his 2012 conviction was "without any real consequence" in light of the fact that he pled guilty to the charges at issue in this case. He will now be serving a lengthy prison sentence followed by a requirement that he register as a Tier III sex offender.[11] Whether or not Richardson was previously required to register as a Tier II or Tier III sex offender is without any real consequence because, as a result of the subject conviction, he is now required to register as a Tier III sex offender.

         10. Consequently, Richardson's 2012 plea was never set aside, overturned, or withdrawn, his conviction stands, his sentence ...


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