State v. Whittington ( 2022 )

IN THE SUPERIOR COURT OF THE STATE OF DELAWARE
STATE OF DELAWARE, )
)
v. ) I.D. No. 2106010727
)
LEMONT WHITTINGTON, )
)
Defendant. )
ORDER DENYING MOTION FOR POSTCONVICTION RELIEF
Submitted: March 14, 2022
Decided: May 27, 2022
Upon Consideration of Motion for Appointment of Counsel,
DENIED.
Upon Consideration of Motion for Postconviction Relief,
DENIED.
Lindsay A. Taylor, Esq., Deputy Attorney General, Department of Justice,
Georgetown, Delaware. Attorney for the State of Delaware.
Lemont Whittington, Seaford, Delaware. Pro Se.
CONNER, J.
(1) This is the Court’s decision on a pro se motion for postconviction relief
pursuant to Superior Court Criminal Rule 61 (“Rule 61”) filed by Defendant Lemont
Whittington (“Whittington”). On June 20, 2021, Whittington was arrested and
charged with Aggravated Menacing, Possession of a Firearm During the
Commission of a Felony, Carrying a Concealed Deadly Weapon, Possession of a
Weapon With a Removed, Obliterated or Altered Serial Number, First Degree
Reckless Endangering, Possession of Firearm While Under the Influence, and
Offensive Touching. On November 17, 2021, Whittington plead guilty to
Aggravated Menacing. Pursuant to the plea agreement the State dismissed the
remaining charges.
(2) Prior to accepting the guilty plea, the Court conducted a thorough plea
colloquy.1 Whittington’s affirmations during the colloquy included that he: i) had
plenty of time to discuss the plea agreement and review the case with his attorney;
ii) had no questions about the plea agreement; iii) was satisfied with his attorney’s
representation; iv) understood the rights he was forfeiting by pleading guilty;
v) made truthful representations on the Truth-In-Sentencing Guilty Plea Form;
vi) committed aggravated menacing, specifically that he intentionally placed the
victim in fear of imminent physical injury by displaying what appeared to a handgun;
vii) understood the maximum penalty for that offense; and viii) was entering the plea
1
Hr’g Tr. 11/17/2021, at 3:8–6:23.
2
voluntarily. At the conclusion of the colloquy, the Court found Whittington’s plea
was made knowingly, intelligently, and voluntarily. The Court then entered a
judgment of conviction.2 Whittington was sentenced to five years of Level V
supervision suspended for one year of Level III supervision pursuant to
Whittington’s plea agreement with the State.3 Whittington did not appeal.
(3) On January 7, 2022, Whittington filed a timely pro se motion for
postconviction relief pursuant to Rule 61 (the “Rule 61 Motion”). On February 8,
2022, the State filed a response. On March 14, 2022, Whittington replied.
(4) The sole ground for relief raised by Whittington is that he is not guilty
of Aggravated Menacing.4 In particular, Whittington contends that “at know [sic]
time was [the victim] in fear and I never pointed the weapon in her or at her direction
[sic].”5 Whittington contemporaneously requested appointment of postconviction
counsel. In Whittington’s March 14, 2022, reply he raises an ineffective assistance
of counsel argument for the first time.
2
Id. at 6:23–7:1.
3
Whittington received credit for 151 days served. The sentence imposed additional conditions
such as no unlawful or uninvited contact with the victim, substance abuse treatment and
forfeiture of the seized weapon.
4
“A person is guilty of aggravated menacing when by displaying what appears to be a deadly
weapon that person intentionally places another person in fear of imminent physical injury.” 11
Del. C. § 602(b).
5
Def.’s Mot. for Postconviction Relief at 3.
3
(5) The Court first addresses the procedural bars of Rule 61.6 This is a
timely first motion for postconviction relief.7 Rule 61(b)(2) states in relevant part,
“[t]he motion shall specify all the grounds for relief which are available to the
movant and of which the movant has or, by the exercise of reasonable diligence,
should have knowledge . . . .”8 Rule 61 motions may be amended “at any time before
a response is filed” by the State.9 Here, after the State filed its response, Whittington
filed a reply brief raising a new argument. He did not provide any explanation for
why the supplemental argument was not raised in his Rule 61 Motion. The Court has
been provided no justification why “justice so requires” consideration of the tacked-
on argument.10 Under Rule 61(b)(2), the submission of claims in this manner is not
permitted. Accordingly, consideration of the contention raised for the first time in
Whittington’s March 14, 2022, reply is barred.
(6) The Court next addresses procedural bars relating to the claim raised in
the Rule 61 Motion. Pursuant to Rule 61(i)(3), “[a]ny ground for relief that was not
asserted in the proceedings leading to the judgment of conviction . . . is thereafter
barred, unless the movant shows (A) [c]ause for relief from the procedural default
and (B) [p]rejudice from violation of the movant's rights.”11
6
Younger v. State, 580 A.2d 552, 554 (Del. 1990).
7
See Super. Ct. Crim. R. 61(i)(1).
8
Super. Ct. Crim. R. 61(b)(2).
9
Id. 61(b)(6).
10
See id.
11
Id. 61(i)(3).
4
(7) Whittington’s claim that he is innocent does not show “[c]ause for relief
from the procedural default,” and there is no allegation of a “violation of
[Whittington’s] rights.”12 Therefore, this Rule 61 Motion is procedurally barred by
Rule 61(i)(3).13 By pleading guilty, Whittington forfeited his right to raise an
innocence claim.14 There are no allegations of newly discovered evidence nor
indication of manifest injustice. “Conclusory allegations of innocence are not
sufficient to require withdrawal of a guilty plea, especially when the defendant has
admitted his guilt in the plea colloquy.”15 Whittington is bound by his answers on
the Truth-in-Sentencing Guilty Plea Form and by his sworn testimony prior to the
acceptance of the guilty plea.16 A careful review of the Rule 61 Motion and the
record of prior proceedings makes it plainly apparent that Whittington is not entitled
to relief. Therefore, Whittington’s Motion for Postconviction Relief is DENIED.
(8) Under Rule 61(e)(3), the Court may appoint postconviction counsel
relating to a guilty plea only under certain conditions including that “the motion sets
forth a substantial claim that the movant received ineffective assistance of counsel
12
Id.; see also Warrington v. State, 892 A.2d 1085 (Del. 2006) (TABLE).
13
See State v. Saunders, 2004 WL 772070, at *7 (Del. Super. Apr. 12, 2004).
14
Fink v. State, 16 A.3d 937 (Del. 2011) (TABLE); State v. Moreno, 2001 WL 112065, at *1
(Del. Super. Jan. 30, 2001) (holding that one who pleads guilty gives up “the right to challenge
the evidence presented against him.”).
15
Russell v. State, 734 A.2d 160 (Del. 1999) (TABLE); see also Jones v. State, 2022 WL
1134744, at *3; Savage v. State, 815 A.2d 349 (Del. 2003) (TABLE).
16
Somerville v. State, 703 A.2d 629, 632 (Del. 1997).
5
. . . and specific exceptional circumstances warrant the appointment of counsel.”17
(9) Whittington is not entitled to counsel. No “[s]pecific exceptional
circumstances warrant the appointment of counsel,” and as addressed above,
Whittington “fails to [set] forth a substantial claim.” 18 Accordingly, Whittington’s
request for appointment of counsel is DENIED.
IT IS SO ORDERED.
/s/ Mark H. Conner
Mark H. Conner, Judge
cc: Prothonotary
17
Super. Ct. Crim. R. 61(e)(3).
18
Id.6