Submitted: August 1, 2019
Defendant's Motion for Postconviction Relief
Defendant's Motion for Appointment of Counsel.
Barzilai K. Axelrod, Esquire, Department of Justice,
Wilmington, Delaware, Attorney for the State.
Christopher E. Craig, Sussex Correctional Institution,
Georgetown, Delaware, pro se.
RICHARD R. COOCH, R. J.
29th day of August, 2019, upon consideration of
Defendant's motions, it appears to the Court that:
1. On November 5, 2012, Christopher E. Craig
("Defendant") pled nolo contendere to one count of
Promoting Prison Contraband. Defendant was sentenced to twelve
months at level five incarceration. At the time of the plea
and sentencing, Defendant was serving consecutive level five
sentences of twenty years for Possession of a Deadly Weapon
During the Commission of a Felony ("PDWDCF"), and
eighteen years for Murder Second Degree. Defendant was
sentenced on the PDWDCF and the Murder Second Degree charges
on May 16, 1997. Defendant now has a total consecutive
sentence of thirty-nine years at level five incarceration. As
a consequence of his 2012 plea, Defendant lost all
accumulated prison good time pursuant to 11 Del. C.
§ 4382(a). On July 22, 2019, Defendant filed a pro
se Motion for Postconviction Relief and Motion for
Appointment of Counsel.
2. In his Motion for Postconviction Relief, Defendant raises
two grounds for relief. First Defendant claims that his trial
counsel was ineffective for allegedly not informing Defendant
that a plea to a criminal charge while Defendant was
incarcerated would result in the forfeiture of accumulated
good time. Defendant argues that his lack of
knowledge of the "direct and automatic consequence"
of his plea renders it unknowingly made and invalid.
Second, Defendant claims that forfeiture of his accumulated
good time pursuant 11 Del. C. § .4382(a)
without an order by the Court violated his right to due
3. Rule 61 is the remedy for defendants "in custody
under a sentence of this court seeking to set aside the
judgment of conviction[.]" Rule 61 delineates certain
"bars to relief which prevent a defendant from seeking
relief in certain circumstances. Under Rule 61(i)(1), a
motion for postconviction relief "may not be filed more
than one year after the judgment of conviction is final[,
]" Defendant filed his motion nearly seven
years after his sentencing. His motion is not timely, and
therefore procedurally barred. The Court cannot consider the
substantive merits of his untimely motion.
4. Additionally, Defendant's request for appointment of
counsel is denied. The Court "may appoint counsel for an
indigent movant's first timely postconviction
motion and request for appointment of counsel if the motion
seeks to set aside a judgment of conviction that resulted
from a plea of guilty or nolo contendere only
if' the Court determines that:
(i) the conviction has been affirmed by final order upon
direct appellate review or direct appellate review is
unavailable; (ii) the motion sets forth a substantial claim
that the movant received ineffective assistance of counsel in
relation to the plea of guilty or nolo contendere; (iii)
granting the motion would result in vacatur of the judgment
of conviction for which the movant is in custody; and (iv)
specific exceptional circumstances warrant the appointment of
motion is not timely, and does not meet any of the enumerated
requirements in Rule 61(e)(i)-(iv). Thus, Defendant is not
entitled to appointment of counsel.
foregoing reasons, Defendant's Motion for Postconviction
Relief is DENIED. Defendant's Motion ...