Buchanan v. State

IN THE SUPREME COURT OF THE STATE OF DELAWARE
DAVID J. BUCHANAN, §
§
Defendant Below, § No. 357, 2016
Appellant, §
§ Court Below—Superior Court
v. § of the State of Delaware,
§
STATE OF DELAWARE, § Cr. ID No. 0801031784
§
Plaintiff Below, §
Appellee. §
Submitted: October 24, 2016
Decided: December 12, 2016
Before STRINE, Chief Justice; VAUGHN, and SEITZ, Justices.
ORDER
This 12th day of December 2016, upon consideration of the appellant’s
opening brief, the appellee’s motion to affirm, and the record below, it appears to
the Court that:
(1) The appellant, David J. Buchanan, filed this appeal from a Superior
Court order denying his motion for modification of probation. The State of
Delaware has filed a motion to affirm the judgment below on the ground that it is
manifest on the face of Buchanan’s opening brief that his appeal is without merit.
We agree and affirm.
(2) The record reflects that, in September 2008, a Superior Court jury
convicted Buchanan of Burglary in the Third Degree, Resisting Arrest, Criminal
Contempt, three counts of Possession of a Firearm by a Person Prohibited, and two
counts of Carrying a Concealed Deadly Weapon. Buchanan was sentenced to nine
years of non-suspended Level V incarceration, followed by decreasing levels of
supervision. On appeal, this Court affirmed all of Buchanan’s convictions, except
for the Burglary in the Third Degree conviction.1 On May 21, 2014, after
Buchanan had filed numerous, unsuccessful motions challenging his convictions,
we directed the Clerk of the Court to refuse any filing from Buchanan unless the
filing was accompanied by the required filing fee or the filing was accompanied by
a completed motion to proceed in forma pauperis, with the necessary certifications,
and that motion was first granted by the Court.2
(3) On March 28, 2016, Buchanan filed a motion to modify his sentence.
Buchanan asked the Superior Court to terminate his curfew or end his probation so
he could begin working as a commercial truck driver. The State opposed
modification until there was verification of Buchanan’s employment. Buchanan
subsequently filed a letter indicating that while he was disqualified from working
for the initial trucking company he had identified in his motion, he had found
another job that would still require termination of his curfew or probation. The
Superior Court denied the motion. This appeal followed.
1
Buchanan v. State, 981 A.2d 1098 (Del. 2009).
2
Buchanan v. State, 2014 WL 2159325, at *1 (Del. May 21, 2014).
2
(4) On July 12, 2016, this Court issued a notice directing Buchanan to
show cause why the appeal should not be dismissed for his failure to comply with
the May 21, 2014 order. Buchanan filed a motion to proceed in forma pauperis
and responded to the notice to show cause. After the State indicated it was their
position that Buchanan had complied with the Court’s May 21, 2014 order, the
notice to show cause was discharged.
(5) We review the Superior Court’s denial of a motion under Superior
Court Criminal Rule 35(b) for abuse of discretion.3 To the extent the claim
involves a question of law, we review the claim de novo.4 Under Rule 35(b), the
Superior Court “may ... reduce the fine or term or conditions of partial confinement
or probation, at any time.”
(6) In his opening brief, Buchanan does not make any arguments
regarding the impact of his probation terms on his search for employment. Instead,
he rehashes and reframes claims he has previously made against his convictions
and argues that his convictions should be vacated. These claims are without merit.
(7) First, Rule 61, not Rule 35, is the exclusive remedy for a person
seeking to set aside a judgment of conviction.5 Second, we will not revisit claims
3
State v. Lewis, 797 A.2d 1198, 1202 (Del. 2002).
4
Weber v. State, 2015 WL 2329160, at *1 (Del. May 12, 2015).
5
Super. Ct. 61(a)(2).
3
that we have previously addressed and rejected.6 We conclude that the Superior
Court did not err in finding Buchanan’s sentence remained reasonable and
appropriate and denying termination of Buchanan’s curfew or probation so he
could take a position that required him to be gone for days. As the Superior Court
noted, it had already granted Buchanan’s request for a Level III interstate transfer
so he could relocate to care for his mother in Florida. We remind Buchanan that he
is barred from litigating claims in this Court that have been raised or disposed of
before in any court.
NOW, THEREFORE, IT IS ORDERED that the motion to affirm is
GRANTED and the judgment of the Superior Court is AFFIRMED.
BY THE COURT:
/s/ Collins J. Seitz, Jr.
Justice
6
See, e.g., Buchanan v. State, 2011 WL 3452148, at *2-3 (Del. Aug. 8, 2011) (rejecting
Buchanan’s attacks on protection from abuse order, search of property, and traffic stop and
affirming denial of Buchanan’s first Rule 61 motion); State v. Buchanan, 2014 WL 704408, at *3
(Del. Super. Ct. Feb. 14, 2014) (holding arguments based upon protection from abuse order were
barred as previously adjudicated under Rule 61), aff’d, 2014 WL 2159325 (Del. May 21, 2014).
4