DEPUTY v. STATE, 254 (Del. 8-2-2010)

KENNETH T. DEPUTY, Defendant Below, Appellant, v. STATE OF DELAWARE, Plaintiff Below, Appellee.

No. 254, 2010.Supreme Court of Delaware.Submitted: May 19, 2010.
Decided: August 2, 2010.

Court Below — Superior Court of the State of Delaware in and for Kent County, Cr. ID No. 9612008864.

Before STEELE, Chief Justice, HOLLAND andJACOBS, Justices.

ORDER
MYRON T. STEELE, Chief Justice.

This 2nd day of August 2010, upon consideration of the opening brief, the motion to affirm and the Superior Court record, it appears to the Court that:

(1) The appellant, Kenneth T. Deputy, has appealed the Superior Court’s April 22, 2010 summary dismissal of his fourth motion for postconviction relief pursuant to Superior Court Criminal Rule 61 (“Rule 61”).[1] Deputy argues that the Superior Court abused its discretion when

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dismissing the motion on procedural grounds.[2] The appellee, State of Delaware, has moved to affirm the Superior Court’s judgment on the ground that it is manifest on the face of the opening brief that the appeal is without merit.[3] We agree and affirm.

(2) The Superior Court did not err when dismissing Deputy’s fourth motion for postconviction relief as procedurally barred pursuant to Rule 61(i)(1), (2) and (4).[4] Consideration of Deputy’s claims also is not warranted in the interest of justice, on the basis that the Superior Court lacked jurisdiction, or on the basis of a constitutional violation.[5] In reaching this conclusion, the Court rejects Deputy’s argument that the Court’s 2009 opinion in Maddox v. State suggests a basis to reconsider his previously unsuccessful claim of a fatally defective indictment.[6]

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NOW, THEREFORE, IT IS ORDERED that the State’s motion to affirm is GRANTED. The judgment of the Superior Court is AFFIRMED.

[1] See Del. Super. Ct. Crim. R. 61(i) (listing procedural bars to postconviction relief).

[2] Deputy’s postconviction claims as summarized are defective indictment, erroneous jury instruction, missing jury instruction and ineffective assistance of counsel.

[3] Del. Supr. Ct. R. 25(a).

[4] See Del. Super. Ct. Crim. R.61(i)(1) (barring claim filed more than three years after judgment is final or after newly recognized retroactively applicable right (amended 2005 to reduce limitations period to one year for conviction final after July 1, 2005)); (i)(2) (barring repetitive motions); (i)(4) (barring formerly adjudicated claims). See also Maxion v. State, 686 A.2d 148, 150 (Del. 1996) (providing that the Superior Court must address the procedural requirements of Rule 61 before reaching the merits of any postconviction claims).

[5] See Del. Super. Ct. Crim. R. 61(i)(4) (providing for reconsideration of formerly adjudicated claim in interest of justice); (i)(5) (providing that procedural bar is inapplicable to a jurisdictional claim or to a colorable claim of a constitutional violation).

[6] See Maddox v. State, 2009 WL 2323490 (Del. Supr.) (rejecting argument that the indictment was constitutionally defective because it omitted an element of the crime).

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