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State v. Bennett

Superior Court of Delaware, Sussex

June 27, 2019

State of Delaware
v.
Marcus T. Bennett,

         Dear Mr. Bennett:

         Pending before the Court are motions for postconviction relief and for appointment of counsel which defendant Marcus T. Bennett ("defendant" or "Bennett") has filed pursuant to Superior Court Criminal Rule 61 ("Rule 61"). This is my decision denying the pending motions.

         Defendant was indicted on charges of manslaughter; vehicular homicide in the first degree; three counts of reckless endangering in the first degree; driving a motor vehicle under the influence of alcohol, drugs or a combination of both; driving a motor vehicle while his license was suspended or revoked; criminal mischief under $1, 000.00; driving on a divided highway; failing to drive on the right side of the roadway; failing to stop at a stop sign; and driving at an unsafe speed.

         On September 5, 2017, defendant entered into a Robinson plea[1] to a charge of manslaughter. He entered a Robinson plea because he did not have any recollection of the crimes he committed. The State of Delaware ("the State") proffered the following facts to support the plea. Between September 9 and 10, 2016, defendant was driving while impaired. He crossed the northbound and southbound lanes of Route 1 through the median and into a soybean field. He came out of the field and headed south in the northbound lane of Route 1. On a curve, his vehicle crashed head-on into the victim's vehicle, killing the victim. Defendant's blood alcohol content ("BAC") was .218, substantially over the legal limit and he also had marijuana in his system.

         After being placed under oath, the Court reviewed the plea with defendant. The Court confirmed the following: defendant had gone over his case with his lawyer; he was satisfied with his lawyer's representation of him; he had no complaints about his lawyer; he had reviewed and understood his Plea Agreement and the Truth-in-Sentencing ("TIS") Guilty Plea Form; he answered the questions in the TIS Form truthfully; he understood the trial rights he was giving up; no one forced him to give them up; his attorney reviewed with him the evidence, penalties and elements of the charge of manslaughter and the fact that he could receive 2 to 25 years at Level 5; he understood that a Presentence Investigation Report was to be prepared; and he understood that the sentence was to be determined after the Presentence Investigation Report was prepared. After finding defendant made a knowing, intelligent and voluntary decision to enter the plea, the Court accepted defendant's plea.

         A Presentence Report was prepared. On October 27, 2017, the Court sentenced defendant. The Court explained that because the victim's death resulted from defendant's alcohol and drug use, excessive speed, and his driving in the wrong direction, it was established that defendant recklessly caused the victim's death and thus, the elements of manslaughter were established. The Court exceeded the sentence recommended by the TIS guidelines because it concluded the aggravating factors outweighed the mitigating factors. These aggravating factors were as follows. Defendant had participated in the First Offender's Program in 2012, for driving under the influence. He was violated and then was adjudicated guilty in that matter. Defendant had committed numerous excessive speeding offenses. Defendant was driving without a valid driver's license at the time of the offense. At the time of the accident, defendant had a BAC of .218. The Court concluded a need for correctional treatment existed. It addressed the fact that the impact on the victims was severe. Finally, the Court considered defendant's undue depreciation of the offense. The Court sentenced defendant to 25 years at Level 5, with credit for 105 days previously served, suspended after 10 years at Level 5 and upon successful completion of the Level 5 Key Program for 1 year at Level 4, Residential Substance Abuse Treatment Program and upon successful completion thereof, the balance was suspended, followed by 1 year at Level 4, Home Confinement, followed by 2 years at Level 3 Aftercare.

         Defendant did not appeal his sentence. His judgment of conviction was final on November 26, 2017, which was 30 days after his sentence was imposed.[2]

         Defendant did not file his pending motions until April 1, 2019, a little over 16 months after his conviction was final. In his motion for postconviction relief, he asserts trial counsel was ineffective because 1) trial counsel failed to file an appeal from his judgment and 2) trial counsel allowed defendant to accept a plea to manslaughter when there was insufficient evidence to support his conviction for manslaughter. With regard to the ineffectiveness in failing to appeal, defendant states that he wanted to challenge his conviction. Defendant submits an affidavit where he claims he asked his trial counsel to appeal his conviction. He does not set forth any ground for appeal he planned to pursue. With regard to the ineffectiveness in allowing defendant to plead to manslaughter, he incorrectly argues the elements of the crime were not met. He also argues the sentence was beyond the guidelines and disproportional to other sentences for manslaughter convictions. He maintains defense counsel should have moved for a lesser-included offense, such as vehicular homicide. He then argues that but for trial counsel's ineffectiveness, the outcome would have been different.

         Attached to defendant's motion is a copy of a letter to an attorney from whom he was seeking assistance wherein defendant states his deadline for filing his Rule 61 motion was October 27, 2018.[3] This statement shows defendant was aware of Rule 61's one year time bar.

         The current version of Rule 61[4] states in pertinent part as follows:

(a) Scope of rule.
(1) Nature of proceeding. - This rule governs the procedure on an application by a person in custody under a sentence of this court seeking to set aside the judgment of conviction or a sentence of death on the ground that the court lacked jurisdiction or on any other ground that is a sufficient factual and legal basis for a collateral attack upon a criminal conviction or a capital sentence. A proceeding under this rule shall be known as a postconviction proceeding.
***
(d) Preliminary consideration. -
(1) First postconviction motion. - A first postconviction motion shall be presented promptly to the judge who accepted a plea of guilty or nolo contendere or presided at trial in the proceedings leading to the judgment under attack. ***
(2) Second or subsequent postconviction motions. - A second or subsequent motion under this rule shall be summarily dismissed, unless the movant was convicted after a trial and the motion either:
(I) pleads with particularity that new evidence exists that creates a strong inference that the movant is actually innocent in fact of the acts underlying the charges of which he was convicted; or
(ii) pleads 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 the movant's case and renders the conviction or death sentence invalid.
(5) Summary dismissal. - If it plainly appears from the motion for postconviction relief and the record of prior proceedings in the case that the movant is not entitled to relief, the judge may enter an order for its ...

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