IN THE SUPERIOR COURT OF THE STATE OF DELAWARE

STATE OF DELAWARE,
Plaintiff,

V. Cr. ID No. 1411008699

KEITH L. CAMPBELL,

Defendant.

Submitted: July 12, 2018
Decided: August 16, 2018

COMMISSIONER’S REPORT AND RECOMMENDATION THAT
DEFENDANT’S [SECOND] MOTION FOR POSTCONVICTION RELIEF
SHOULD BE SUMMARILY DISMISSED

Matthew Frawley, Deputy Attorney General, Department of Justice, Wilmington,
Delaware, Attorney for the State.

Keith L. Campbell, Reg # 08921-015, FDC Philadelphia, P.O. Box 562,
Philadelphia, PA 19105, pro se.

MAYER, Commissioner

This 16th day of August, 2018, upon consideration of Defendant’s [Second]
Motion for Postconviction Relief, the following is my Report and Recommendation:
BACKGROUND, FACTS AND PROCEDURAL HISTORY
1. On October 6, 2015, Defendant plead guilty to Assault First Degree, Assault
Second Degree, Conspiracy Second Degree, and one count of Possession of a
Firearm by a Person Prohibited (the “PFBPP Charge”). On that same date,
Defendant also signed a Truth-in-Sentencing Form acknowledging that he Was freely
and voluntarily pleading guilty to the charges listed in the Plea Agreement, that by
pleading guilty he Was Waiving the right to a trial, to question Witnesses, and if
convicted, to file an appeal to the Delaware Supreme Court With the assistance of a
lawyer. Defendant also indicated he Was satisfied With his lawyer’s representation
and that he had been fully advised of his rights.

2. Since then, Defendant has filed two Motions to Withdraw Guilty Plea,l a
Motion for Reduction/Modification of Sentence,2 and a Motion for Postconviction
Relief (the “First Motion”). The First Motion Was a thirty-one (31) page single
spaced brief including numerous case citations and exhibits In support of his First

l\/Iotion, Defendant argued (i) trial counsel Was ineffective for failing to file an

 

l On April 21, 2016, the Court denied the motion but agreed to reduce the
Defendant’s minimum mandatory time for the PFBPP Charge to 5 years (See D.I. #

54).

2 D.I. # 55, 57, 58.

file an effective motion to suppress; and (ii) prosecutorial misconduct/ineffective
assistance of counsel as a result of counsel overstating the applicable statutory time
when the plea was offered and accepted

3. On February 13, 2017, l issued a Report and Recommendation that the First
l\/Iotion should be Summarily Dismissed (the “Report”).3 Defendant was afforded
numerous extensions of time and eventually responded to the Report with a
Memorandum of Law. On October 27, 2017, the Court issued an Order denying the
First l\/lotion.4 Defendant’s appeal of that Order was dismissed on January 19, 2018.
Five months later, Defendant has now filed his second Motion for Postconviction
Relief (the “Second l\/Iotion”).5

4. Defendant’s Second Motion presents three arguments First, entitled “Abuse
of courts discretion,” Defendant argues he did not know he had a right to appeal the
Court’s denial of his motion to suppress and when he learned of that fact he contacted
his counsel who filed a motion to withdraw his plea. That motion was heard and
denied by the Court. Second, entitled “Denied the right to appeal,” Defendant re-

asserts the basis of his first argument but adds that the trial judge never informed

 

3 D.I. # 63.

4 D.I. # 71.

5 Defendant also filed a Motion for Appointment of Counsel that was denied. See
D.I. # 78.

him of his right to appeal the'suppression decision. Third, entitled “Enhanced under
the wrong statute,” Defendant claims the prosecutor told him he had two felonies
which mislead him and he would have accepted the plea had he not been

misinformed.

LEGAL CONCLUSION

5. Before considering the merits of a claim, the Court must first determine
whether there are any procedural bars to the motion.6 After reviewing Defendant’s
Second l\/Iotion, it is evident that pursuant to Super. Ct. Crim. R. 61 (d)(5) the motion
may be summarily dismissed because it is procedurally barred and it plainly appears
from the record in the case that the movant is not entitled to relief. As such, the
Court should not consider the merits of the claims.7

6. Defendant’s Second Motion is procedurally barred by Super. Ct. Crim. R.

61(i)(1) for having been filed more than one year after the conviction became final.8

 

6 Younger v. State, 580 A.2d 552, 554 (Del. 1990).

7 Younger v. State, 580 A.2d 552, 554 (Del. 1990). See also Paul v. State, 2011 WL
3585623 (Del. Aug. 15, 2011), at "‘1 (“Delaware law provides that the Superior
Court must first consider whether the defendant has satisfied the procedural
requirements of Rule 61 before considering the merits of his postconviction

motion.”)

8 Defendant’s Second Motion was filed more than two years after his conviction
became final on July 7, 2016 (30 days after he was re-sentenced). Super. Ct. Crim.

R. 61(m).

And, as this is Defendant’s second motion for postconviction relief, Defendant can
only proceed if the motion asserts that he was convicted after a trial and either (i)
pleads with particularity that new evidence exists that creates a strong inference that
the movant is actually innocent in fact of the acts underlying the charges of which
he was convicted; or (ii) pleads with particularity a claim that a new rule of
constitutional law, made retroactive to cases on collateral review by the United
States Supreme Court or the Delaware Supreme Court, applies to the movant’s case
and renders the conviction invalid.9 Defendant was not convicted after a trial and
his Second Motion neglects to present either of the exceptions to the bar.

7. Defendant’s Second Motion is also barred by Super. Ct. Crim. R. 61(i)(4)
which prohibits a defendant from raising claims that have already been adjudicated
in the proceedings leading to the judgment of conviction, in an appeal, in a
postconviction proceeding or in a federal habeas corpus proceeding Despite the re-
titling of his arguments, the Second l\/lotion once again seeks to challenge his
counsel’s performance with the suppression motion, and the circumstances
surrounding the plea offer. These allegations were addressed by way of the motions

to withdraw guilty plea, motion for modification of sentence, and the First l\/Iotion.

 

9 Super. Ct. Crim. R. 61(i)(2); Super. Ct. Crim. R. 61(d)(2).

As such, these issues have already been decided and should not be-reconsidered
again.

8. To the extent Defendant believes these arguments circumvent the “formerly
adjudicated” bar, they were nonetheless waived when Defendant failed to raise them
before the trial court, on appeal, or in his First Motion. Any ground for relief that
was not asserted in the proceedings leading to the judgment of conviction is barred
unless the defendant shows cause for relief from the procedural default and prejudice
from a violation of his rights.lo When asked why these arguments were not
previously presented to the Court, Defendant responded that his trial counsel lead
him to believe he could only raise claims of ineffective assistance of counsel in a
post-conviction motion and that he “did not know how to read at the time so he was
unable to properly go over his paperwork.” These statements are directly
contradicted by his 31-page brief in support of his First Motion and the varied
arguments presented therein.

9. Finally, Defendant’s claim that he was never informed of his right to appeal,
is belied by his own statements In the Second Motion, Defendant acknowledges
that defense counsel filed a motion to withdraw the guilty plea on the basis that he
was unaware of his right to appeal the suppression decision. That issue was

considered by the Court and the motion was denied. Further, Defendant signed the

 

10 Super. Ct. Crim. R. 61(i)(3).

Plea Agr_eement and .Truth-in-Sentencing Form waiving his right to a trial, to contest
the evidence against him and to an appeal. Defendant is bound by his representations
to the Court and his waiver of defensesll

For all of the foregoing reasons, Defendant’s Motion for Postconviction Relief
should be summarily dismissed

IT IS SO RECOMMENDED.

  

oc: Prothonotary
cc: Keith Campbell
Matthew Frawley, Esquire

 

l' Somervl`lle v. Staz‘e, 703 A.2d 629, 632 (Del. 1997); Mz'ller v. State, 840 A.2d
1229, 1232 (D€l. 2003).

