MUZZI v. STATE, 23 A.3d 865 (Del. 2011)

No. 207, 2011.Supreme Court of Delaware.Submitted: May 26, 2011.
Decided: June 22, 2011.

Court Below — Superior Court of the State of Delaware in and for New Castle County Cr. ID No. 70021401DI.

Before HOLLAND, BERGER andJACOBS, Justices.

ORDER
CAROLYN BERGER, Justice.

This 22nd day of June 2011, 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 defendant-appellant, David Muzzi, filed an appeal from the Superior Court’s March 31, 2011 order, which adopted the Superior Court Commissioner’s March 11, 2011 report recommending that Muzzi’s second motion for postconviction relief pursuant to Superior Court Criminal Rule 61 be denied.[1] The plaintiff-appellee, the 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) The record before us reflects that, in January 1969, a Superior Court jury found Muzzi guilty of one count of Rape in the First Degree. He was sentenced to life imprisonment. Muzzi’s conviction was affirmed by this Court on direct appeal.[3] In January 2007, Muzzi filed his first motion for postconviction relief. Among other things, Muzzi claimed that his counsel had provided ineffective assistance at trial. In July 2007, the Superior Court denied Muzzi’s motion on the ground that it was time-barred under Rule 61(i)(1). This Court affirmed the Superior Court’s judgment.[4]

(3) In this appeal from the Superior Court’s denial of his second motion for postconviction relief, Muzzi again claims that his trial counsel provided ineffective assistance. Specifically, Muzzi argues that his counsel did not seek an advantageous result, was not competent or diligent, did not maintain communication with him and did not represent him to the best of his ability. The Superior Court denied Muzzi’s motion as time-barred under Rule 61(i)(1) and procedurally barred under Rule 61(i)(4) as formerly adjudicated.

(4) When considering a postconviction motion, the Superior Court must first apply the procedural requirements of Rule 61 before reaching the merits of the motion.[5] In this case, the Superior Court properly applied the time and procedural bars in denying Muzzi’s postconviction motion. Moreover, there is no support in the record for a colorable claim of a constitutional violation and, therefore, Muzzi is not entitled to relief under Rule 61(i)(5).

(5) It is manifest on the face of the opening brief that the appeal is without merit because the issues presented on appeal are controlled by settled Delaware law and, to the extent that judicial discretion is implicated, there was no abuse of discretion.

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