Opinion
No. 417, 2003.
Submitted: November 19, 2003.
Decided: January 27, 2004.
Superior Court of the State of Delaware, in and for Kent County, in Cr.A. No. IK97-10-0448-0451, Def. ID No. 9704012286.
Before VEASEY, Chief Justice, HOLLAND and BERGER, Justices.
ORDER
This 27th day of January 2004, upon consideration of the appellant's opening brief and the appellee's motion to affirm pursuant to Supreme Court Rule 25(a), it appears to the Court that:
(1) The appellant, William Gregory Summers, filed an appeal from the Superior Court's order denying his third motion for postconviction relief pursuant to Superior Court Criminal Rule 61. The appellee, State of Delaware, has moved to affirm the judgment of the Superior Court on the ground that it is manifest on the face of Summers' opening brief that the appeal is without merit. We agree and AFFIRM.
(2) In 1999, Summers was convicted after a bench trial of Robbery in the First Degree, Assault in the Third Degree and Misdemeanor Theft. He was declared a habitual offender and sentenced to life in prison. On direct appeal, Summers' convictions and sentences were affirmed with the exception of the theft conviction, which was reversed by the Supreme Court and later stricken by the Superior Court.
Summers v. State, 2000 WL 1508771 (Del.Supr.).
(3) Summers filed his first motion for postconviction relief in May 2001. In that motion, Summers asserted, in part, that both his trial and appellate counsel were ineffective. The Superior Court summarily denied the motion, and this Court affirmed the judgment. In February 2003, Summers filed his second motion for postconviction relief. He again contended that his trial counsel and appellate counsel were ineffective. The Superior Court summarily dismissed Summers' second motion as procedurally barred by Rule 61(i)(2) and (3), and this Court affirmed.
Summers v. State, 2002 WL 31300028 (Del.Supr.).
Summers v. State, 2003 WL 21456669 (Del.Supr.).
(4) In July 2003, Summers filed his third motion for postconviction relief. Again, Summers alleged that both his trial and appellate counsel were ineffective, and again the Superior Court summarily dismissed the motion as procedurally barred, this time finding it untimely pursuant to Rule 61(i)(1), repetitive pursuant to Rule 61(i)(2), and defaulted pursuant to Rule 61(i)(3). This appeal followed.
(5) As a preliminary matter, we note that Summers' convictions became final in October 2000 when this Court issued the mandate following his direct appeal. Thus, Summers' third postconviction motion that was filed in July 2003 was not time-barred under Rule 61(i)(1), as was held by the Superior Court. Nonetheless, it is clear that Summers' motion was subject to the procedural bars of Rule 61(i)(2) and Rule 61(i)(3), as the Superior Court determined. Moreover, we conclude that Summers has not demonstrated why the procedural bars should be excused in the interest of justice, for a miscarriage of justice or due to a lack of jurisdiction.
See Jackson v. State, 654 A.2d 829, 833 (1995).
Rule 61(i)(1) bars postconviction motions that are filed more than three years after the judgment of conviction is final.
Super. Ct. Crim. R. 61(i)(2).
Super. Ct. Crim. R. 61(i)(5).
(6) It is also clear that Summers' ineffective assistance of counsel claims are barred as formerly adjudicated, pursuant to Rule 61(i)(4). Summers has previously complained about, and received a ruling on, the effectiveness of his attorneys. Summers is not free to litigate that issue again even though he may have added new factual allegations. Moreover, he has not demonstrated that reconsideration of his claims is warranted in the interest of justice.
Riley v. State, 585 A.2d 719, 721 (1990) (holding that the Court is not required to reconsider a claim simply because it has been "refined or restated").
Super. Ct. Crim. R. 61(i)(4).
(7) It is manifest on the face of Summers' opening brief that his appeal is without merit. The issues on appeal are controlled by settled Delaware law. To the extent that judicial discretion is implicated, clearly there was no abuse of discretion.
NOW, THEREFORE, IT IS ORDERED that, pursuant to Supreme Court Rule 25(a), the State of Delaware's motion to affirm is GRANTED. The judgment of the Superior Court is AFFIRMED.