State v. Whiteman ( 2024 )

IN THE SUPERIOR COURT OF THE STATE OF DELAWARE
STATE OF DELAWARE, )
)
Plaintiff, )
)
)
v. ) Cr. ID No. 30604628DI
)
)
BENJAMIN F. WHITEMAN, )
)
Defendant. )
)
Submitted: September 11, 2024
Decided: October 18, 2024
COMMISSIONER’S REPORT AND RECOMMENDATION THAT
DEFENDANT’S POSTCONVICTION MOTION SEEKING A
“CERTIFICATE OF APPEALABILITY”
SHOULD BE DENIED
Daniel Logan, Esquire, Deputy Attorney General, Department of Justice,
Wilmington, Delaware, Attorney for the State.
Benjamin Whiteman, James T. Vaughn Correctional Center, Smyrna,
Delaware, pro se.
PARKER, Commissioner
This 18th day of October 2024, upon consideration of Defendant’s
Postconviction Motion seeking a “Certificate of Appealability”, it appears to
the Court that:
1. Defendant Benjamin F. Whiteman pled guilty in 1987 to one count of
second degree burglary. The 1987 plea agreement provided that the State
would not recommend a life sentence but the defendant would admit that his
three prior felony convictions qualified him as a habitual offender under 11
Del. C. § 4214(a). The Superior Court accepted the plea agreement but did
not sentence him as a habitual offender. Rather, the Superior Court, in its
discretion, sentenced Defendant to 10 years of Level V incarceration, to be
suspended after 3 years, for 7 years of decreasing levels of supervision.
2. In 1989, a Superior Court jury convicted Defendant of third degree
unlawful sexual penetration in Criminal Action No. 30901716DI. Defendant
was sentenced to life imprisonment as a habitual offender in accordance with
11 Del. C. § 4214(a). Defendant’s habitual sentence was effective on March
15, 1989 and was to be served consecutive to any other sentence he was then
serving.1 On direct appeal, the Delaware Supreme Court affirmed
Defendant’s conviction.2
1
State v. Whiteman, ID No. 30901716DI (Del.Super. Oct.27, 1989)(D.I. 15).
2
Whiteman v. State, 1991 WL 12112 (Del.).
1
3. Since that 1989 life imprisonment sentence, Whiteman has barraged
the courts with attacks on his 1987 and 1989 convictions and sentences, all
without success.3 Included among those attacks, Whiteman has already filed
three unsuccessful Rule 61 motions challenging his plea and sentence related
to his 1987 burglary conviction.4
4. The Delaware Supreme Court has previously held that Whiteman’s
untimely, repetitive, and frivolous filings constitute an abuse of the judicial
process. In the future, unless leave to proceed is granted by the Delaware
Supreme Court, Whiteman is enjoined from proceeding in the Delaware
Supreme Court on any claim related to his 1989 sentence.5
5. On August 5, 2024, Defendant filed the subject postconviction motion
seeking a “Certificate of Appealability” again challenging the validity of his
1987 plea and sentence.
6. At this late stage, Whiteman does not have standing to challenge his
1987 burglary conviction and sentence since he has already fully served and
been discharged from that sentence. Whiteman is currently serving a
separate life term from a wholly unrelated 1989 conviction for unlawful
3
See, Whiteman v. State, 2009 WL 3086567 (Del.); Whiteman v. State, 2013 WL
434143, *1 (Del.).
4
See, State v. Whiteman, 2006 WL 1579781, *1-2 (Del.Super.), aff’d, 2006 WL 1971811(Del.); State v. Whiteman, 2013 WL 434143 (Del.); State v. Whiteman, 2022 WL
17076219 (Del.Super.), dismissing appeal, 2023 WL 1809359 (Del.).
5
Whiteman v. State, 2017 WL 961804, *1 (Del.).
2
sexual penetration. Any academic argument about the validity of the
burglary conviction and sentence presents no ”actual controversy” now
because that sentence was terminated decades ago.6
7. Superior Court Criminal Rule 61 provides the exclusive remedy for
setting aside a judgment.7 Under Rule 61, a person loses standing to move
for postconviction relief where the defendant is not in custody or subject to
future custody for the underlying offense or challenged sentence.8
8. The only exception to Rule 61 requiring the defendant to be in
custody or subject to future custody for the challenged sentence is when the
defendant suffers “collateral legal disabilities or burdens” from the
conviction.9 But the Delaware Supreme Court has consistently held that the
later use of an earlier conviction as a predicate offense for habitual offender
sentencing does not constitute a collateral legal disability or burden, and
does not create an exception to the “in custody” requirement of Rule 61.10
6
See, D.I. 121- Order dated April 15, 2021 denying Defendant’s Motion for Correction
of Illegal Sentence as moot. See also, State v. Whiteman, 2022 WL 17076219, *1
(Del.Super.)(as Defendant is not currently in custody for the burglary sentence, he is not
entitled to Rule 61 considerations).
7
Weber v. State, 2019 WL 3268813, *3 (Del. 2019); Alley v. State, 2015 WL 7188326(Del.).
8
Del.Super.Ct.Crim.R. 61(a)(1); Weber v. State, 2019 WL 3268813, *3 (Del.); Coleman
v. State, 2015 WL 5096047, *2 (Del. 2015).
9
Weber v. State, 2019 WL 3268813, *3 (Del. 2019).
10
Weber v. State, 2019 WL 3268813, *3 (Del. 2019); Coleman v. State, 2015 WL
5096047, *2 (Del.); Short v. State, 2015 WL 4199849 (Del.)(rejecting claim that 2002
conviction used to enhance sentence for 2004 conviction gave standing to invalidate the
3
9. The pending motion, seeking to set aside the 1987 burglary conviction
and sentence, must be considered through the lens of Rule 61. Since
Whiteman is not currently in custody for the 1987 burglary conviction, he
lacks standing to seek Rule 61 postconviction relief related to that
conviction. His postconviction motion for a “certificate of appealability” to
challenge his 1987 burglary conviction and sentence is denied.
10. For the sake of completeness, even if Whiteman was entitled to Rule
61 considerations, he would not be able to overcome the threshold
requirement for proceeding with the pending motion.
11. Rule 61 contains a number bar that precludes review of “second or
subsequent” motions.11 Rule 61 requires all second or subsequent motions to
be summarily dismissed unless an exception applies.12 The only defendants
that can avail themselves of an exception to the procedural bars, are those
defendants that were convicted after a trial.13 For defendants who pled
guilty, like Whiteman, and did not have a trial, there are no applicable
exceptions.14 For defendants whose convictions stemmed from a guilty plea,
any second or subsequent motion must be summarily dismissed. Here,
2002 conviction even though defendant was no longer in custody on sentence imposed
for 2002 conviction).
11
Del.Super.Crim.R. 61(d)(2), (i)(2).
12
Del.Super.Crim.R. 61(d)(2), (i)(5).
13
See, Del.Super.Crim.R. 61(d)(2).
14
See, Cadiz v. State, 2022 WL 3366253, *1 (Del.); Brice v. State, 2024 WL 3710504, *1
(Del.).
4
Whiteman’s conviction to the 1987 theft charge stemmed from a guilty plea.
As such, there are no exceptions applicable to him to the Rule 61 bar
precluding the consideration of second or subsequent motions.
12. In accordance with the mandates of Rule 61, Whiteman’s pending
motion, his fourth, should be dismissed because he failed to meet the
threshold pleading requirements for proceeding with a successive Rule 61
motion.
13. In connection with the pending motion, Whiteman has also requested
the appointment of counsel. Because Whiteman lacks standing to challenge
his 1987 burglary conviction and sentence, his request for the appointment
of counsel is denied. Even if he did not lack standing, Whiteman has not
satisfied the pleading requirements allowing him to proceed with the
pending motion, and therefore, his request for the appointment of counsel is
denied.
5
For all of the foregoing reasons, Defendant Whiteman’s
Postconviction Motion seeking a “certificate of appealability” to challenge
his 1987 theft conviction and sentence should be DENIED. Whiteman lacks
standing to challenge his 1987 burglary conviction and sentence, and even if
he did not, his has failed to satisfy the threshold pleading requirements
allowing him to proceed with the pending motion. His related request for
the appointment of counsel should also be DENIED.
IT IS SO RECOMMENDED.
/s/ Lynne M. Parker
Commissioner Lynne M. Parker
oc: Prothonotary
6