State v. Bezarez ( 2020 )

IN THE SUPERIOR COURT OF THE STATE OF DELAWARE
STATE OF DELAWARE, )
)
v. ) ID No. 0702002298
)
JOSE D. BEZAREZ, )
)
Defendant. )
Date Submitted: July 1, 2020
Date Decided: December 16, 2020
ORDER DENYING FOURTH MOTION FOR POSTCONVICTION
RELIEF
Upon consideration of Defendant’s Motion for Postconviction Relief and
Motion for Appointment of Counsel (“Motion”),1 Superior Court Criminal Rule 61,
statutory and decisional law, and the record in this case, IT APPEARS THAT:
1. On March 19, 2007, the Defendant was indicted on four counts of
Reckless Endangering First Degree stemming from a shooting that occurred at an
apartment building in New Castle. Defendant allegedly discharged a firearm in an
apartment located directly above the victims’ apartment and the bullets from
Defendant’s weapon pierced the ceiling of the victims’ apartment while the victims
were inside. Defendant entered a nolo contendere plea to one count of Reckless
1
D.I. 109, 111.
Endangering First Degree and was sentenced to two years of incarceration at Level
V on December 5, 2008.2
2. Defendant now comes before the Court with his fourth motion for
postconviction relief and third motion to appoint counsel. 3 He raises three grounds
for relief in the instant motion. 4
3. First, Defendant argues that applying the current version of Superior
Court Criminal Rule 61 to his motion constitutes an improper retroactive application
of the Rule in violation of the ex post facto clause of the United States Constitution.
He claims the amended language, notably the changes made by the 2014
amendment, deprives him of substantial rights that Defendant would have retained
in a postconviction relief motion if filed in 2008, when his conviction in this case
became final. 5 According to the Defendant, because his conviction and sentence
2
D.I. 58. The facts of this case are set forth in this Court’s Order issued on June 22, 2010
addressing Defendant’s first Motion for Postconviction Relief and are incorporated by reference
here.
3
D.I. 109, 111.
4
D.I. 109. Defendant filed his first motion for postconviction relief on January 4, 2010. D.I. 51.
He filed his second motion for postconviction relief, along with a motion to appoint counsel on
March 12, 2013. D.I. 62, 64. He filed his third motion for postconviction relief, and a second
motion to appoint counsel on May 24, 2018. D.I. 98, 99. All of Defendant’s motions for
postconviction relief and motions to appoint counsel have been denied. Defendant appealed all
three Superior Court orders denying his postconviction relief motions. His first appeal was
dismissed as untimely. Bezarez v. State, 2 A.3d 73 (Del. 2010). His second appeal was denied and
the Superior Court’s judgment affirmed. Bezarez v. State, 105 A.3d 988 (Del. 2014). Defendant
voluntarily dismissed his third appeal in 2019. D.I. 107.
5
Id.2
became final in 2008, the 2008 version of Rule 61 should apply to the instant
motion.6
4. In the instant motion, Defendant raises the same substantive ineffective
assistance of counsel claims he did in his previous motions for postconviction relief:
that defense counsel failed to properly advise him as to his plea and failed to provide
effective representation.7
5. The current version of Superior Court Criminal Rule 61(d)(2) requires
the Court to summarily dismiss a second or subsequent motion for postconviction
relief unless the movant was convicted after a trial and the pleadings allege new
evidence of actual innocence8 or a retroactive new rule of constitutional law that
applies to the movant’s case and renders the conviction invalid. 9
6. Pursuant to Rule 61(e)(5), the Court may appoint counsel for a
movant’s second or subsequent Rule 61 motion only if it is determined that the
motion satisfies the pleading requirements of Rule 61(d)(2)(i) or (d)(2)(ii). 10
7. In the instant motion, Defendant does not argue that a retroactive new
rule of constitutional law applies, nor does he argue the existence of new exculpatory
evidence. Rather, he claims that the Court’s failure to apply the 2008 version of
6
Id.7
Id.8
Super. Ct. Crim. R. 61(d)(2)(i).
9
Super. Ct. Crim. R. 61(d)(2)(ii).
10
Super. Ct. Crim. R. 61(e)(5).
3
Rule 61 to his ineffective assistance of counsel claims violates ex post facto. This
Court defines ex post facto as a law or judicial order “that makes an action done
before the passing of the law, and which was innocent when done, criminal; and
punishes such action or that aggravates a crime, or makes it greater than it was, when
committed.”11
8. Defendant’s claims of an ex post facto violation are without merit.
Defendant does not argue that applying the current version of Rule 61 aggravates or
makes greater the punishment for his actual conviction, the appropriate basis for an
ex post facto claim. Instead, he claims that the current Rule 61 language makes it
more difficult for him to successfully argue his ineffective assistance of counsel
claims, all of which have been previously adjudicated by this Court.12 At the time
he filed each motion for postconviction relief, the version of Rule 61 in existence at
that time was used to adjudicate his motion.
9. Defendant does not argue that any new evidence exists, but merely
reiterates his ineffective assistance of counsel allegations from previous
postconviction relief motions. He offers no new information or arguments for the
Court to consider. 13
11
Johnson v. State, 472 A.2d 1311, 1313-314 (Del. 1983) (internal citations and quotations
omitted); see also State v. Dickerson, 298 A.2d 761, 768 (Del. Super. 1973).
12
See State v. Bezarez, 2010 WL 2573753 (Del. Super. June 22, 2010); State v. Bezarez, 2014 WL
2119703 (Del. Super. May 12, 2014); State v. Bezarez, 2018 WL 3912027 (Del. Super. Aug. 14,
2018).
13
Del. Super. Ct. Crim. R. 61(d)(2).
4
NOW, THEREFORE, IT IS HEREBY ORDERED that Defendant’s
Fourth Motion for Postconviction Relief is SUMMARILY DISMISSED and his
Motion for Appointment of Counsel is DENIED AS MOOT.
Jan R. Jurden
_____________________________
Jan R. Jurden, President Judge
Original to Prothonotary
cc: Jose D. Bezarez (SBI# 260625)
5