State v. Smith

SUPERIOR COURT
OF THE
STATE OF DELAWARE
CRAIG A. KARSNITZ, SUSSEX COUNTY COURTHOUSE
RESIDENT JUDGE 1 THE CIRCLE, SUITE 2
GEORGETOWN, DE 19947
TELEPHONE (302) 856-5263
May 31, 2024
Unique Smith
SBI #00792804
James T. Vaughn Correctional Center
1181 Paddock Road
Smyrna, DE 19977
Re: State of Delaware v. Unique Smith, Def. ID No. 2009007545
Second Rule 61 Motion for Postconviction Relief (R-2)
Second Motion for Appointment of Postconviction Counsel
Dear Mr. Smith:
On October 6, 2021, after a colloquy with me, you entered a guilty plea to
charges of Manslaughter and Possession of a Firearm During the Commission of a
Felony (“PFDCF”). On November 29, 2021, I sentenced you to 25 years at Level 5
for the Manslaughter offense, suspended after 12 years for decreasing levels of
supervision, and 25 years at Level 5 for the PFDCF offense, suspended after 10 years
for decreasing levels of supervision.
On February 17, 2022, you timely filed a Motion for Reduction of Sentence
(the “Sentence Motion”) under Superior Court Criminal Rule 35(b), asking that I
reduce your Level 5 time to between 8 and 12 years. On April 18, 2002, I denied this
Sentence Motion, and the Delaware Supreme Court affirmed my decision on March
1, 2023.
On July 24, 2023, you filed your first pro se Motion for Postconviction Relief
(the “First Motion”) with me under Delaware Superior Court Criminal Rule 61. In
the First Motion, you made certain allegations about ineffective assistance of counsel
with respect to your representation by Benjamin S. Gifford, IV, Esquire (“Trial
Counsel”). On July 26, 2023, you filed a First Motion for Appointment of
Postconviction Counsel (the “First PCC Motion”) in connection with the First
Motion. On August 7, 2023, I denied both First Motions.
On May 28, 2024, you filed your second pro se Motion for Postconviction
Relief (the “Second Motion”) with me under Delaware Superior Court Criminal
Rule 61. In the Second Motion, you made certain allegations about ineffective
assistance of counsel with respect to your representation by Benjamin S. Gifford,
IV, Esquire (“Trial Counsel”). Specifically, you argue that Trial Counsel failed to
timely file a direct appeal with the Delaware Supreme Court, and that you were
unaware of this failure until you filed the First Motion. On May 28, 2024, you filed
a Second Motion for Appointment of Postconviction Counsel (the “Second PCC
Motion”) in connection with the Second Motion.
2
A threshold issue is whether the Second Motion is barred under one or more
of the four (4) procedural bars of Rule 61.1 If a procedural bar exists, as a general
rule I will not address the merits of the Second Motion.2 The Second Motion can be
barred for time limitations, successive motions, failure to raise claims below, or
former adjudication.3
First, the Second Motion exceeds time limitations if it is filed more than one
(1) year after the conviction becomes final.4 In this case, your conviction became
final thirty (30) days after sentencing,5 or December 29, 2021. Since your Second
Motion was filed much more than a year after that date, it is barred by the one-year
limitation.
Second, second or subsequent motions are not permitted unless they plead with
particularity that new evidence exists that creates a strong inference that that the
movant is actually innocent in fact of the acts underlying the charges of which he was
convicted, or plead 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
1
Ayers v. State, 802 A.2d 278, 281 (Del.2002) (citing Younger v. State, 580 A.2d 552, 554 (Del.
1990)).
2
Bradley v. State, 135 A.3d 748 (Del 2016); State v. Page, 2009 WL 1141738, at*13 (Del. Super.
April 28, 2009).
3
Super. Ct. Crim. R. 61(i).
4
Super. Ct. Crim. R. 61(m)(1).
5
Super. Ct. Crim. R. 61(i)(1).
3
invalid.6 Neither of those conditions are satisfied here. Since this is your Second
Motion, consideration of the Motion is barred by this provision.
Third, grounds for relief “not asserted in the proceedings leading to the
judgment of conviction” are barred unless the movant shows cause for relief from the
procedural default and prejudice from violation of the movant’s rights.7 You do not
assert new claims which were not raised at trial. Therefore, consideration of the
Second Motion is not barred for “matters not asserted” below.
Fourth, grounds for relief formerly adjudicated in the case, including
“proceedings leading to the judgment of conviction, in an appeal, in a post-conviction
proceeding, or in a federal habeas corpus hearing” are barred.8 Your claim in your
First Motion pertained to the alleged ineffective assistance of Trial Counsel for his
failure with respect to certain surveillance video. It is well-settled Delaware law that,
as collateral claims, ineffective assistance of counsel claims are properly raised for
the first time in postconviction proceedings.9 Thus, this bar did not apply to your First
Motion. However, I found no ineffective assistance of counsel with respect to your
6
Super. Ct. Crim. R. 61(i)(2).
7
Super. Ct. Crim. R. 61(i)(3).
8
Super. Ct. Crim. R. 61(i)(4).
9
State v. Schofield, 2019 WL 103862, at *2 (Del. Super. January 3, 2019); Thelemarque v. State,
2016 WL 556631, at *3 (Del. Feb. 11, 2016) (“[T]his Court will not review claims of ineffective
assistance of counsel for the first time on direct appeal.”); Watson v. State, 2013 WL 5745708, at
*2 (Del. Oct. 21, 2013) (“It is well-settled that this Court will not consider a claim of ineffective
assistance that is raised for the first time in a direct appeal.”).
4
First Motion, so that claim has already been adjudicated. In your Second Motion you
raise a different ineffective assistance of counsel claim, which I address below.
The procedural bars discussed above do not apply, however, if the Second
Motion “pleads with particularity that new evidence exists that creates a strong
inference that that the movant is actually innocent in fact of the acts underlying the
charges of which he was convicted, or 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.”10 Your claim of ineffective
assistance of counsel does not relate to these exceptions.
With respect to your Second PCC Motion, since it is made in connection with
your Second Motion, Rule 61 provides that I may appoint postconviction counsel
for you only if I determine that the Second Motion satisfies the pleading
requirements discussed above for new evidence of actual innocence in fact or a new
rule of constitutional law.11 Neither is true in this case. Therefore, your Second PCC
Motion is DENIED.
Even if I were to consider your claim of ineffective assistance of Trial Counsel
despite the procedural bars, you are incorrect in your statement of that claim. You
10
Super. Ct. Crim. R. 61(i)(5), referring to Super. Ct. Crim. R. 61(d)(2)(i) and (ii).
11
Super. Ct. Crim. R. 61(e)(5).
5
state that Trial Counsel failed to timely file a direct appeal with the Delaware
Supreme Court. This is incorrect. You pled guilty and were sentenced. Your Trial
Counsel then filed a Motion for Reduction of Sentence on March 16, 2022, which
was denied on April 18, 2022. Your Trial Counsel then filed an appeal of that ruling
to the Delaware Supreme Court, which denied your appeal and affirmed my ruling
on March 1, 2023.
You cast aspersions on Trial Counsel for failing to properly advise you of your
appellate and postconviction rights. This is false. In his March 20, 2023 letter to
you, Trial Counsel informed you that the Delaware Supreme Court had denied your
appeal and advised you – correctly – of the Rule 61 process, which you then
undertook. You cannot reduce your sentence by falsely blaming Trial Counsel, who
represented you very well.
Your Second Motion is DENIED.
Very truly yours,
/s/ Craig A. Karsnitz
cc: Prothonotary
Kathleen Dickerson, Esquire, Deputy Attorney General
6