No. 248, 2003.Supreme Court of Delaware.Submitted: July 3, 2003.
Decided: September 26, 2003.
Court Below — Superior Court of the State of Delaware, in and for Sussex County in S95-09-0086R2, 0087R2. Def. ID No. 9509002602
AFFIRMED
Unpublished Opinion is below
HEMBREE v. STATE, 248 (Del. 9-26-2003) TIMOTHY J. HEMBREE, Defendant Below, Appellant, v. STATE OF DELAWARE, Plaintiff Below, Appellee. No. 248, 2003. Supreme Court of Delaware. Submitted: July 3, 2003. Decided: September 26, 2003.
Court Below — Superior Court of the State of Delaware, in and for Sussex County in S95-09-0086R2, 0087R2. Def. ID No. 9509002602
Before HOLLAND, BERGER and STEELE, Justices.
ORDER
Carolyn Berger, Justice:
This 26th day of September 2003, 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, Timothy J. Hembree, filed an appeal from an order of the Superior Court denying his second 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 the opening brief that the appeal is without merit. We agree and affirm.
(2) In December 1995, Hembree was convicted by a Sussex County Superior Court jury on charges of Attempted Robbery in the First Degree and Assault in the Second Degree. The Superior Court declared Hembree an habitual offender[1] and sentenced him to life imprisonment plus five years.
(3) On appeal, Hembree claimed, in one of two issues, that the Superior Court failed to conduct a full and fair habitual offender hearing. This Court found that Hembree’s claim was without merit and affirmed the conviction and sentence.[2]
(4) After his appeal, Hembree filed a petition for a writ of habeas corpus in the United States District Court for the District of Delaware.
Hembree unsuccessfully raised four grounds for relief: (i) he was denied due process and equal protection because he did not receive a jury trial on his habitual offender status; (ii) his life sentence was disproportionate; (iii) his life sentence was due to his failure to accept a plea bargain and was based upon a selective enforcement of the law; and (iv) the victim did not want him to receive a life sentence and was not permitted to address the sentencing court.[3]
(5) In November 2000, Hembree filed a “writ of plain error” in the Superior Court. Hembree alleged that he was deprived of a “factual determination” habitual offender hearing. Hembree’s writ was summarily denied as previously adjudicated on November 22, 2000, and he did not appeal.
(6) In April 2002, Hembree filed his first postconviction motion.
Hembree raised three issues: (i) the Superior Court failed to hold a separate habitual offender hearing; (ii) ineffective assistance of counsel, and (iii) prosecutorial misconduct. By order dated April 10, 2002, the Superior Court denied Hembree’s motion as procedurally barred. Hembree did not appeal that decision.
(7) On April 9, 2003, Hembree filed a second motion for postconviction relief. Hembree raised thirteen grounds for relief, including (i) illegal arrest, (ii) lack of jurisdiction, and (iii) ineffective assistance of counsel.
By order dated April 14, 2003, the Superior Court denied Hembree’s motion as procedurally barred. Hembree filed a motion for reargument, which the Superior Court denied on May 1, 2003. This appeal followed.
(8) In this appeal from the denial of his second postconviction motion, Hembree argues that (i) he was denied due process when the information failed to allege that his conduct was intentional, which is an essential element of title 11, section 531 of the Delaware Code[4] ; (ii) the arrest warrant was similarly deficient; (iii) he was deprived the effective assistance of counsel; (iv) the prosecutor erred in proceeding by information rather than by indictment; (v) his waiver of a preliminary hearing was constitutionally invalid; (vi) the trial court’s jury instructions were improper; and (vii) his sentence was illegal because he was denied his right to a separate habitual offender hearing.[5]
(9) When considering a motion for postconviction relief pursuant to Superior Court Criminal Rule 61, the Superior Court must apply the procedural requirements of the rule before reaching the merits of the claim.[6] In this case, the Superior Court did not abuse its discretion when it denied Hembree’s motion for postconviction relief on procedural grounds.
(10) Hembree’s convictions became final in January 1997, more than five years before he filed his second motion for post-conviction relief.
Hembree’s claims, therefore, are time-barred under Rule 61(i)(1) and barred as repetitive under Rule 61(i)(2), unless Hembree can show the applicability of one of the exceptions set forth in Rule 61(i)(5). Moreover, to the extent Hembree’s motion raised claims that were previously adjudicated, the claims are barred under Rule 61(i)(4) unless Hembree can demonstrate that reconsideration is required in the interest of justice.
(11) In an attempt to avail himself of the exceptions to the procedural bars of Rule 61(i)(1) and (2), Hembree argues that the trial court lacked jurisdiction to convict him. Hembree provides no support, however, for his claim that his signed waiver of indictment was invalid, and none of his other conclusory allegations state “a colorable claim that there was a miscarriage of justice because of a constitutional violation that undermined the fundamental legality, reliability, integrity or fairness of the proceedings leading to the judgment of conviction.”[7]
Moreover, Hembree has not demonstrated that the Court should reconsider his formerly adjudicated claims in the interest of justice.[8]
(12) It is manifest on the face of the opening brief that this appeal is without merit. The issues presented 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’s motion to affirm is GRANTED. The judgment of the Superior Court is AFFIRMED.