State of Delaware v. Townsend. ( 2015 )

IN THE SUPERIOR COURT OF THE STATE OF DELAWARE
IN AND FOR NEW CASTLE COUNTY
STATE OF DELAWARE )
)
)
v. ) I.D. 1107020432
)
)
KEVIN M. TOWNSEND, )
)
Defendant. )
ORDER
1. In 2012 Defendant pled guilty to Robbery in the First Degree,
Possession of a Firearm During the Commission of a Felony and
Conspiracy in the Second Degree. He was sentenced to twenty-five
years, suspended after five years for the robbery conviction and five years
for the weapons conviction. He also was sentenced to decreasing levels of
probation for his robbery conviction and probation for his conspiracy
conviction. His sentence also mandated he undergo certain specified
drug treatment programs. In sum, Defendant was sentenced to ten years
of non-suspended Level 5 time.
2. In March 2014 Defendant filed the instant Rule 61 motion
seeking post-conviction relief. In his pro se motion he contended that he
was misled by his attorney and the prosecutor into believing the court
would sentence him to no more than eight years of non-suspended Level
5 time. Another Judge of this court appointed counsel for Defendant.
After reviewing the record, appointed counsel moved to withdraw because
he could find no arguable issues to present in a Rule 61 motion.
3. The gist of Defendant’s motion is that “my attorney and the
prosecution agreed to a certain amount of time and I got more.” It is
apparent, therefore, that the defendant is seeking to withdraw his guilty
plea. Where, as here, the defendant has been sentenced, any motion to
withdraw a guilty plea must be brought under Criminal Rule 61.1
Accordingly the court must first decide whether Defendant’s motion is
procedurally barred. “It is well-settled that the Superior Court must
address the procedural requirements of Rule 61 before considering the
merits of a postconviction motion.” 2
4. Rule 61 provides that a “motion for postconviction relief may
not be filed more than one year after the judgment of conviction is final.” 3
In the instant case Defendant’s conviction became final in 2012, and he
did not file this motion until 2014. It is therefore procedurally barred.
The exceptions to the procedural bars in Criminal Rule 61 provide no
help to Defendant. The only exception which is even arguably applicable
here is Rule 61(i)(5) which provides that the “bars to relief in paragraphs
(1), (2), (3), and (4) of this subdivision shall not apply. . .to a claim that
1
Superior Court Criminal Rule 32(d)(“If a motion for withdrawal of a plea of guilty or nolo contendere is
made before imposition or suspension of sentence or disposition without entry of a judgment of conviction,
the court may permit withdrawal of the plea upon a showing by the defendant of any fair and just reason.
At any later time, a plea may be set aside only by motion under Rule 61.”)
2
Evans v. State, 2014 WL 4104785 (Del.)
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Superior Court Criminal Rule 61(i)(4).
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satisfies the pleading requirements of subparagraphs (2)(i) or (2)(ii) of
subdivision (d) of this rule.” Defendant’s motion does not satisfy that
requirement. Rule 61(d)(2) provides that a motion for postconviction relief
shall not be dismissed if either the defendant
(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.
Here Defendant has failed to plead any new evidence suggesting he was
innocent, much less new evidence sufficient to create a strong inference
he is actually innocent. Further he has not alleged any new rule of
constitutional law which is applicable to his case. Consequently his
motion will be summarily dismissed.
5. The court notes in passing that the underlying premise of
Defendant’s motion—that he was mislead into believing he would receive
the recommended sentence—is untrue. Defendant, who was sworn
immediately before the plea colloquy, acknowledged he was aware he
could receive more than the recommended eight years at Level 5:
THE COURT: Now, did Mr. O’Connell explain to
you that if I accept your plea, the Court must
sentence you to a minimum of six years in jail?
DEFENDANT: Yes, sir.
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THE COURT: And did he explain to you that the
Court may send you to jail for up to 52 years?
DEFENDANT: Yes.
THE COURT: Did he explain to you that the
Court is not obligated to follow the
recommendation either of your attorney or the
State’s attorney?
DEFENDANT: Yes.
THE COURT: Did anyone promise you what
sentence the Court will impose, if I accept your
plea?
DEFENDANT: No sir.
THE COURT: Has anyone promised you
anything at all in exchange for your plea?
DEFENDANT: No.
WHEREFORE, the motion of appointed counsel to withdraw is
GRANTED and Defendant’s Motion for Postconviction Relief is
DISMISSED.
Dated: February 5, 2015 John A. Parkins, Jr.
Superior Court Judge
oc: Prothonotary
cc: Kevin M. Townsend, SBI 514718, HRYCI, Wilmington, Delaware
Joseph S. Grubb, Esquire, Department of Justice, Wilmington,
Delaware
Christopher D. Tease, Esquire, Wilmington, Delaware
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