STATE v. TAYLOR, 30903471DI (Del.Super. 7-27-2007)

I.D. No. 30903471DI.Superior Court of Delaware, New Castle County.Submitted: June 6, 2007.
Decided: July 27, 2007.

Upon Consideration of Defendant’s Motion for reconsideration for an Evidentiary Hearing[1] , DENIED

Upon Consideration of defendant’s third PRO SE motion for Postconviction Relief[2] , SUMMARILY DISMISSED.

PEGGY L. ABLEMAN, Judge.

This 27th day of July, 2007, it appears to the Court that:

1. In 1989, a jury found Henry R. Taylor, Jr. (“Taylor”) guilty of burglary second degree.[3] Taylor was declared a habitual offender[4] because of three prior burglary second degree convictions in 1983 and 1984[5] and he

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was sentenced to life in prison. The Supreme Court affirmed Taylor’s conviction and sentence on direct appeal. Since then, Taylor has filed two motions for postconviction relief, both of which were denied by this Court and subsequently affirmed by the Supreme Court. Now before the Court are Taylor’s motion for reconsideration for an evidentiary hearing and his third pro se motion for postconviction relief.[6]

2. Taylor claims he was deprived of his due process rights under the Fifth and Fourteenth Amendments to the United States Constitution and Article I, Sections 7 and 9 of the Delaware Constitution. Specifically, Taylor argues that the Court Reporters’ Office’s alleged destruction of the “1983 and 1985 files and records” of his cases deprived him of his due process right to have the merits of his guilty plea challenge reviewed. That is, Taylor claims that the Court Reporters’ destruction of transcripts of the plea colloquy in criminal action numbers IN84-09-0298 and IN84-09-0300 has deprived Taylor of his right to have the Court review the merits of his challenged guilty plea. Therefore, Taylor contends that, to prevent this injustice from continuing, the fundamental fairness exception under Superior

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Court Criminal Rule 61 (“Rule 61”) requires that the Court consider the merits of Taylor’s motion and either order the Court Reporters’ Office “to produce the court records” or, in the alternative, order that Taylor’s “burglary second degree convictions entered under IN84-09-0298-0300 be stricken from the record[,] entitling” Taylor to re-sentencing as a non-habitual offender.[7]

3. Prior to addressing the substantive merits of any claim for postconviction relief, the Court must first determine whether the defendant has met the procedural requirements of Rule 61.[8] If the procedural requirements of Rule 61 are not met, the Court should not consider the merits of a postconviction claim.[9]

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4. Rule 61(i) imposes four procedural imperatives: (1) the motion must be filed within three years of a final order of conviction;[10] (2) any basis for relief must have been asserted previously in any prior postconviction proceeding; (3) any basis for relief must have been asserted at trial or on direct appeal as required by the court rules; and (4) any basis for relief must not have been formerly adjudicated in any proceeding. However, under Rule 61(i)(5), the bars to relief under (1), (2) and (3) do not apply to a “claim that the court lacked jurisdiction or to 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.”

5. In applying the procedural imperatives to this case, Taylor’s claims are barred. Taylor’s challenge of his guilty plea in IN84-09-0298 and IN84-09-0300 is clearly untimely as there was a “final order of conviction” over 20 years ago.[11] Taylor also did not assert a challenge to his guilty plea in a direct appeal to the Supreme Court. Therefore, at first glance, it would

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appear that Taylor’s claims are barred under Rule 61(i)(1) and (i)(3). The Court’s analysis, however, does not end here.

6. “The Delaware Supreme Court has held when a defendant `did not file a direct appeal challenging the validity of [his or her] guilty plea, [the defendant] is procedurally barred from raising that claim in aRule 61 motion, unless [he or she] can show cause for relief and actual prejudice.'”[12] “`[C]ause’ for a procedural default on appeal ordinarily mandates `a showing of some external impediment preventing counsel from constructing or raising the claim.'”[13] “[U]nless the defendant has made and substantiated a concrete allegation of `cause’ and actual `prejudice’, any contention amounting to procedural default will be barred[.]”[14]

7. In this case, Taylor has not shown cause for relief and actual prejudice. There is nothing to indicate why Taylor failed to raise his guilty plea challenge much earlier, and presumably before the transcripts of the plea colloquy were destroyed by the Court Reporters’ Office in accordance

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with its 20 year document destruction policy.[15] There is also no implication that some “external impediment” prevented Taylor’s counsel from bringing an appeal to the Supreme Court after Taylor’s Robinson Plea in IN84-09-0298 and IN84-09-0300. In addition, Taylor has failed to establish “actual prejudice” from any alleged violation of his rights.[16] Therefore, the Court finds that Taylor has not made and substantiated a concrete allegation of cause and actual prejudice. As such, Taylor has not overcome the procedural bar under Rule 61(i)(3).

8. As for Rule 61(i)(5), there is no basis upon which to excuse the procedural bars to Taylor’s claims under the fundamental fairness exception. A “[p]resumption of regularity attaches to plea proceedings when the transcript has been destroyed pursuant to court policy after the passage of time.”[17] While this Court “recognizes the importance of insuring that criminal defendants are afforded their fundamental constitutional rights[,]”

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the Court “cannot presume that [a defendant’s] plea was invalid based on the absence of the colloquy transcript,” particularly when the transcript has been destroyed pursuant to standard court policy.[18]
Therefore, “the initial burden is on the moving defendant to present some articulable reason which the motion judge deems a credible indicator that the presumptively proper guilty plea proceedings were constitutionally defective.”[19] Here, Taylor has failed to meet that initial burden. Taylor merely states that his plea was not voluntary and that, during the plea colloquy, the State did not put on record a “sufficient factual basis.”[20] These unsubstantiated and conclusory statements are not a “credible indicator” that the plea proceedings were defective. Therefore, because Taylor has failed to meet his burden, the Court must continue to presume that there were no constitutional defects when taking Taylor’s plea. It follows that the destruction or loss of the colloquy transcript does not present “a colorable claim that there was a miscarriage of justice because of a constitutional violation that undermined

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the fundamental legality, reliability, integrity or fairness of the proceedings leading to the judgment of conviction.”[21]

9. Lastly, after considering Taylor’s motion and the vast record in this case, the Court finds that an evidentiary hearing is not warranted or desirable.[22]

10. Based on the foregoing, the motion for reconsideration for an evidentiary hearing is DENIED and the motion for postconviction relief is SUMMARILY DISMISSED.

IT IS SO ORDERED.

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