JOHNSON v. STATE, 977 A.2d 898 (Del. 2009)

No. 182, 2009.Supreme Court of Delaware.
August 11, 2009.

Court Below — Superior Court of the State of Delaware in and for Kent County, Cr. ID No. 0706025356.

Before BERGER, JACOBS and RIDGELY, Justices.

ORDER
JACK B. JACOBS, Justice.

This 11th day of August 2009, upon consideration of the appellant’s opening brief, the appellee’s motion to affirm, and the Superior Court record, it appears to the Court that:

(1) The appellant, George P. Johnson, Sr., filed an appeal from the Superior Court’s March 12, 2009 summary dismissal of his motion for postconviction relief pursuant to Superior Court Criminal Rule 61 (“Rule 61”).[1] 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.[2] We agree and affirm.

(2) On April 10, 2008, a Superior Court jury convicted Johnson of Delivery of Cocaine to a Minor, Delivery of Cocaine within 300 Feet of a Park, and Trespass in the Third Degree. The jury acquitted Johnson of Endangering the Welfare of a Child. The Superior Court sentenced Johnson to twenty years at Level V, suspended after ten years of mandatory incarceration for three years at Level IV Crest Program, suspended after successful completion for Level III probation. On direct appeal, this Court affirmed Johnson’s convictions and sentence pursuant to Supreme Court Rule 26(c).[3]

(3) Johnson alleged in his postconviction motion that the prosecutor’s closing argument impermissibly infringed on Johnson’s right not to testify and improperly expressed the prosecutor’s personal opinion of Johnson’s guilt. Also, Johnson alleged that the jury verdict was inconsistent. Johnson did not raise any of these claims at trial or on direct appeal. The Superior Court concluded that Johnson’s postconviction motion warranted summary dismissal because it was “completely conclusory.”

(4) When reviewing the Superior Court’s denial of a postconviction motion, the Court first must consider the procedural requirements of Rule 61 before addressing any substantive issues.[4] In this case, Johnson’s claims are procedurally barred unless he can demonstrate cause for his failure to raise the claims at trial or on direct appeal and prejudice from the alleged violation of his rights, [5] or that an exception to the procedural bar is warranted.[6]

(5) Johnson has satisfied none of those requirements. In the absence of demonstrated cause and prejudice or that an exception to the procedural bar is warranted, the Court concludes that the Superior Court’s summary dismissal of Johnson’s motion was appropriate.

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