State v. Hubbard

IN THE SUPERIOR COURT OF THE STATE OF DELAWARE
STATE OF DELAWARE, )
)
v. ) ID Nos. 1205011439
) 140 1 0 1 7608
DERRICK A. HUBBARD, )
)
Defendant. )
ORDER
AND NOW TO WIT, this 23rd day of August, 2016, upon consideration of
the Defendant’s Motion for Postconviction Relief,l and the record in this case, IT
APPEARS THAT:
l. On May 14, 2012, Defendant Derrick Hubbard was arrested for multiple
counts of Drug Dealing and other related charges in case number 1205011439.2
On December ll, 2012, Defendant pled guilty to Drug Dealing and was sentenced
to 8 years at Level 5, suspended for 18 months at Level 3.3
2. On August 27, 2013, Defendant was taken into custody for allegedly
violating the terms of his probation.4 At a November 6, 2013 violation of
probation ("VOP") hearing, Defendant was found not in violation.$ Defendant was
‘ ID Ne. 1205011439 ("cese 1"), D.I. 35; 1D Ne. 1401017603 (“cese 2”), D.1. 20.
2 Case l, D.I. 1.
3 case 1,1).1. 11.
4 case 1,D.1. 17.
5 case 1,D.1. 19.
continued on his previously imposed probation, but his sentence was modified to
credit Defendant with time served while in custody awaiting the VOP hearing.
3. On January 30, 2014, Defendant was arrested on new charges of Drug
Dealing in case number l40l0l7608 and was thereafter committed to the
6 Defendant signed a waiver of indictment on the new
Department of Correction.
charges,7 and on April 2, 2014, pursuant to a Plea Agreement, Defendant pled
guilty to Drug Dealing and to violating the terms of his probation by committing a
new criminal offenses In the Plea Agreement, the State agreed to recommend a
presentence investigation and to cap its recommendation to 10 years at Level 5.
Defendant agreed that he is an habitual offender pursuant to 11 Del. C. § 42l4(a).
4. On September 25, 2014 Defendant filed a notice of appeal for the
November 6, 2013 sentencing order modification that credited Defendant with time
he served at Level 5 while awaiting a VOP hearing.g The Clerk issued a notice to
Defendant to show cause why the appeal should not be dismissed for his failure to
file his notice of appeal within 30 days of order, and on October 20, 2014, the
Supreme Court issued an order dismissing Defendant’s appeal because he failed to
respond to the notice to show cause within the required ten-day period.lo
6 case 1,1).1. 20-23.
7 Case 2, D.I. 2.
8 Case 2, D.I. 3.
?()Hubbard v. State, 103 A.3d 514 (Del. 2014)..,_
Id.
NOW THEREFORE, for the foregoing reasons, Defendant’s Motion for
Postconviction Relief is DENIED.
IT IS SO O-T§R'I.'}ERED.
ll
5. On April 17, 2015, Defendant was declared an habitual offender under
§4214(a) and sentenced to 2 years at Level 5 for Drug Dealing.“ For his VOP
conviction, Defendant was sentenced to 8 years at Level 5, with credit for 72 days
previously served, suspended after 7 years at Level 5 for time at Level 4, followed
by Level 3.12
6. On May 19, 2016, Defendant filed the instant pro se Motion for
Postconviction Relief pursuant to Superior Court Cn``minal Rule 61. Defendant
raises sixteen grounds for relief relating to the November 6, 2013 VOP proceeding,
the November 6, 2013 sentence modification, and the 2014 VOP proceedings and
guilty plea. Defendant’s alleged grounds for relief are summarized as follows: (1)
ineffective assistance of counsel; (2) appeal of November 6, 2013 sentence
modification should not have been deemed moot/time barred; (3) coerced guilty
plea; (4) double jeopardy; (5) judicial misconduct occurred when "eamed
compliance credit was not applied to movants 2012 probation sentence" and
Defendant "was not given credit for all [Level 5] time served in 2012;" (6) Fourth
Amendment constitutional violations; (7) illegal plea agreement; (8) Superior
Court erred in its discretion at the 2013 VOP proceeding and at 2015 sentencing;
(9) Superior Court was biased because of Defendant’s previous convictions; (10)
Superior Court lacked jurisdiction over Defendant to sentence him on the VOP;
“ case 2,D.1. 19.
12 case 1,1).1.33.
(l l) November 6, 2013 sentence modification was in excess of statutory limits;
(l2) original 2012 probation sentence illegally "interrupted" by invalid VOP;
(13) unconstitutional seizure of Defendant’s money; (l4) judicial impropriety;
(l5) unconstitutional search and seizure after 2014 arrest; and (l6) unconstitutional
warrantless search of Defendant’s vehicle.
7 . Before addressing the merits of any claim for postconviction relief, the
Court must first determine whether any of the procedural bars under Rule 6l are
applicable.” Rule 6l(i)(1) provides that a motion for postconviction relief is
untimely if it is filed more than one year after a judgment of conviction is final,
unless the motion asserts a newly recognized, retroactively applied right. Under
Rule 6l(i)(2) successive motions are prohibited unless the pleading requirements
of Rule 6l(d)(2)(i) or (ii) are met. Rule 6l(i)(3) bars consideration of any ground
for relief "not asserted in the proceedings leading to the judgment of conviction,"
unless the movant can show "cause for relief from the procedural default" and
"prejudice from violation of the movant’s rights." Rule 61(i)(4) bars consideration
of any ground for relief formerly adjudicated in the case.
8. lf a procedural bar exists, the Court will not consider the merits of the
claims unless the defendant can show that an exception found in Rule 6l(i)(5)
applies. Rule 6l(i)(5) provides that consideration of otherwise procedurally barred
‘3 Y@unger v. smze, 580 A.zd 552, 554 (Del. 1990).
claims is limited to claims that the Court lacked jurisdiction, or claims that satisfy
the pleading requirements set forth in Rule 6l(d)(2)(i) and (ii).M
9. As an initial matter, Ground 10 asserts that the Court lacked jurisdiction
to adjudicate Defendant’s 2014 VOP or to sentence him on that charge. Thus,
consideration of Ground 10 is permissible under Rule 6l(i)(5) notwithstanding the
applicability of any other procedural bar. Defendant’s allegation of lack of
jurisdiction relates to his argument that the Court improperly continued Defendant
on his original probation sentence following the November 6, 2013 VOP
proceeding where Defendant was found not in violation of probation. The Court
had jurisdiction to conduct the 2013 VOP proceeding and to modify Defendant’s
sentence to credit Defendant with time served while awaiting adjudication of an
alleged VOP.U Defendant continued serving his previously imposed Level 3
sentence following the November 6, 2013 VOP proceeding, and Defendant’s
sentence was modified solely to credit Defendant with time served. No Level 5
time that was previously suspended was reimposed. Because Defendant was still
14 Rule 6l(d)(2)(i) and (ii) require that the Rule 61 Motion either: (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 invalid.
15 ll Del. C. § 270l(c) ("The Superior Court shall have jurisdiction, original and concurrent,
over all crimes, except where jurisdiction is exclusively vested in another court."); ll Del. C_
§ 270l(e) ("The jurisdiction conferred by this section to hear, try and finally determine
prosecutions of a crime or offense includes the power to issue all process and to conduct such
proceedings as may be necessary or appropriate for the complete exercise of such jurisdiction.").
serving his original Level 3 sentence when he committed the acts underlying the
2014 VOP,N’ Defendant’s allegation of lack of jurisdiction is without merit.
10. Although phrased different1y, Ground 12 also challenges the validity of
Defendant’s continuance on probation following the November 6, 2013 VOP
proceedings, and consequently, the Court’s authority to convict Defendant for a
VOP in the 2014 VOP proceedings. For the reasons discussed in relation to
Ground 10, Ground 12 is also without merit.
ll. Ground 1 alleges that Defendant received ineffective assistance of
counsel when counsel did not assert Defendant’s argument in the 2014 VOP
proceedings that his probation sentence had expired and therefore new charges
could not result in a VOP. Consideration of Ground 1 is time-barred by Rule
61(i)(1) because it relates to the proceedings leading to the VOP conviction, and
Defendant’s Rule 61 motion was filed more than a year after the 2014 VOP
conviction was made final.w Consideration is not warranted under any of the Rule
61(i)(5) exceptions
12. In Ground 2, Defendant argues that the Supreme Court should not have
dismissed Defendant’s appeal of the November 6, 2013 sentence order for failing
16 Moody v. State, 988 A.2d 451, 454 (Del. 2010) ("[T]he date of the violation is the controlling
factor in a challenge to a VOP hearing." (citing Haines v. State, 2002 WL 243324, at *l (Del.
Feb. 13, 2002))).
17 A judgment of conviction is final under Rule 61 30 days after the imposition of sentence as
long as the defendant does not file a direct appeal. Super. Ct. Crim. R. 61(m). Defendant was
sentenced on the 2014 VOP on April 17, 2015, and the instant Motion for Postconviction Relief
was filed on May 19, 2016.
to show cause why his untimely appeal should not be dismissed. Rule 61 "governs
the procedure on an application by a person in custody under a sentence of this
court seeking to set aside the judgment of conviction . . . on the ground that the
court lacked jurisdiction or on any other ground that is a sufficient factual and legal
basis for a collateral attack upon a criminal conviction."lg Rule 61 is not the
proper vehicle to contest the Supreme Court’s appellate decisions.
l3. In Ground 3, Defendant argues that he was coerced by counsel into
pleading guilty to the 2014 VOP. Defendant’s counsel for the 2014 guilty plea
hearing withdrew as counsel on February 6, 2015,19 and the Court ordered new
counsel to be appointed on February 9, 2015, for the purpose of representation at
sentencing.z° Defendant did not move to withdraw his guilty plea at any time
before the Apri1 l7, 2015 sentencing. Consideration of Ground 3 barred by Rule
6l(i)(l) as untimely. Consideration is not warranted under any of the Rule 6l(i)(5)
exceptions.
l4. In Ground 4, Defendant argues that the Court erred in during the
November 6, 2013 VOP hearing when the Court continued Defendant on his
previously imposed probation, and therefore, the 2014 VOP proceedings were
tainted by a double jeopardy violation. To the extent that Defendant’s "doub1e
18 Super. Ct. Crim. R. 61(a)(1).
‘° case 2, D.I. 16.
20 Case 2, D.I. 15.
jeopardy" argument goes to jurisdiction, it is without merit. As discussed above in
relation to Ground 10, the Court did not err when it issued a sentence modification
to credit Defendant with time served following the 2013 VOP hearing; therefore,
the 2014 VOP proceedings were proper because Defendant was still serving his
original Level 3 sentence when he committed the 2014 VOP. Except for any
relation to jurisdiction, consideration of Ground 4 is barred by Rule 6l(i)(l) as
untimely and by Rule 61(i)(3) because Defendant did not argue double jeopardy in
the 2014 VOP proceedings leading to the VOP conviction and because Defendant
has not established cause to relieve the procedural default or prejudice.
Consideration is not warranted under any of the Rule 61(i)(5) exceptions,
15 . In Ground 5, Defendant argues that judicial misconduct occurred when
"earned compliance credit was not applied to movants 2012 probation sentence"
and Defendant "was not given credit for all [Level 5] time served in 2012." This
allegation does not implicate the validity of the proceedings leading to a judgment
of conviction, and therefore, Rule 61 is not the proper vehicle for Defendant’s
claim.
16. In Grounds 6, 13, 15, and 16, Defendant alleges various Fourth
Amendment violations relating to his 2014 VOP conviction. These claims are
barred by Rule 6l(i)(l) as untimely. These are also barred by Rule 61(i)(3)
because they were not asserted in the proceedings leading to the judgment of
conviction, and Defendant waived the right to move to suppress when he entered a
guilty plea.zl Consideration is not warranted under any of the Rule 6l(i)(5)
exceptions..
l7. In Ground 7, Defendant alleges that the State knowingly entered into an
illegal plea agreement "for the [sole] purpose of declaring movant an habitual
offender." Ground 7 is barred by Rule 6l(i)(l) as untimely. Ground 7 is also
barred by Rule 6l(i)(3) because Defendant did not challenge his eligibility to be
sentenced as an habitual offender in the proceedings leading to the judgment of
conviction, and Defendant waived his right to challenge his status as an habitual
offender when he agreed that he was an habitual offender under § 42l4(a) in his
Plea Agreement. Consideration is not warranted under any of the Rule 6l(i)(5)
exceptions
l8. Grounds 8 and 14 allege_without any clarifying detail-that the Court
erred. In Ground 8, Defendant states that the Court "erred in its discretion or the
lack thereof" at the November 6, 2013 VOP proceeding and at the April l7, 2015
sentencing. In Ground l4, Defendant alleges "impropriety" against the Court, and
Defendant states that this impropriety has "work[ed] against the movant, fair play,
and against the interest of justice." Neither Ground 8 nor Ground 14 sets forth an
21 case 2, D.l. 3; scarborough v. szaze, 119 A.s