IN THE SUPERIOR COURT OF THE STATE OF DELAWARE

STATE OF DELAWARE )

v. § I.D. No. 0804011072
PHILIP DAVIS, ))

Defendant. §

Submitted: June 30, 2017
Decided: July10, 2017

Upon Defendant’s Motion for Postconviction Relief
SUMMARILY DISMISSED.

Upon Defendant’s Motion for Appointment of Counsel
DENIED.

M

Philip Davis, pro se, Smyrna, DE.

Joseph Grubb, Esquire, Chief Prosecutor for NeW Castle County, Department of
Justice, 820 N. French St., Wilmington, Delaware, Attorney for the State.

WHARTON, J.

This 10th day of July, 2017, upon consideration of Defendant’s Motion for
Postconviction Relief, Motion for Appointment of Counsel and the record in this
matter, it appears to the Court that:

l. Defendant Philip Davis (“Davis”) Was indicted by the Grand Jury on
the charges of Rape First Degree (14 counts), Dangerous Crime Against a Child,
Unlawiill SeXual Contact First Degree (ll counts) and Continuous SeXual Abuse
of a Child.l On December 30, 2008, Davis pled guilty to one count each of Rape
First Degree and Rape Fourth Degree, the latter as a lesser included offense of
Rape First Degree.2 ln March 2009, he Was sentenced to a total of 65 years of
incarceration suspended after 44 years, followed by decreasing levels of
supervision3 Davis did not appeal his conviction and sentence to the Delaware
Supreme Court.

2. On June 30, 2017, Davis filed this Motion for Postconviction Relief
(“Motion”),4 his first, along With a Motion for Appointment of Counsel.5 Davis
alleges ineffective assistance of counsel, claiming that his attorney failed to fully
and correctly explain the plea agreement, and failed to advise him of the sentencing
option of “11 Del. C. § 4612(d).”6 Davis also alleges “Unli.lllfillment [sic] of Plea

Agreement” in that he Was never advised of any mandatory sentence or that he had

 

1D.I. 2.

2 D.I. 10.

3 D.I. 13.

4D.I. 16.

5 D.I. 17.

6 Id. There is no such section as 11 Del. C. § 4612(d).

2

the option to be sentenced either under Truth in Sentencing or the prior standard7
Finally, he alleges that the plea agreement was involuntary because he was not made
fully aware of it.8

3. Before addressing the merits of a defendant’s motion for postconviction
relief, the Court must first apply the procedural bars of Superior Court Criminal
Rule 61(i).9 If a procedural bar exists, then the Court will not consider the merits of
the postconviction claim.lo

4. Under DelaWare Superior Court Rules of Criminal Procedure, a motion
for post-conviction relief can be barred, inter alia, for time limitations or
procedural default. A motion exceeds time limitations if it is filed more than one
year after the conviction becomes final or, if it asserts a retroactively applicable
right that is newly recognized after the judgment of conviction is final, more than
one year after the right was first recognized by the Supreme Court of DelaWare or
the United States Supreme Court.ll

5. The bars to relief do not apply either to a claim that the court lacked

jurisdiction or to a claim that pleads with particularity that new evidence exists that

 

7 Id.

8 Id.

9 Younger v. State, 580 A.2d 552, 554 (Del. 1990).
10 Id

11 super. Cr. Crim. R. 61(i)(1).

creates a strong inference of actual innocence12 or that a new retroactively applied
rule of constitutional law renders the conviction invalid.13

6. Summary dismissal is appropriate if it plainly appears from the motion
for postconviction relief and the record of prior proceedings in the case that the
movant is not entitled to relief.14

7. In applying the procedural bars of Rule 61(i), it appears that the motion
is untimely since it was filed more than eight years after the convictions became
final. ln order to overcome this bar to relief, Davis must satisfy the pleading
requirements of Rule 61(2)(i) or (2)(ii).15 He may do so by pleading with
particularity that new evidence exists that creates a strong inference that the he is
actually innocent16 or by pleading With particularity a claim that a new retroactive
rule of constitutional law applies to the his case and renders his conviction
invalid.17 Davis has not made that effort. Therefore this untimely motion must be
SUMMARILY DISMISSED.

8. Rule 61(e)(2) provides for the appointment of counsel in first
postconviction relief motions in guilty plea cases.18 “The judge may appoint

counsel for an indigent movant’s first timely postconviction motion and request for

 

12 Super. Ct. Crim. R. 61(i)(5).

13 Super. Ct. Crim. R. 61(d)(2)(i) and (ii).
14 Super. Ct. Crim. R. 61(d)(5).

15 Super Ct. Crim. R. 61(i)(5).

16 super Ct. Crim. R. 61(d)(2)(i).

17 Super. Ct. Crim. R. 61(d)(2)(ii).

18 Super. Ct. Crim. R. 61(e)(2).

appointment of counsel.”19 Here the postconviction relief motion is untimely and,
accordingly, the request for counsel is DENIED.

Therefore, since it plainly appears from Motion for Postconviction Relief
and the record in this case that Davis is not entitled to relief, the Motion for
Postconviction Relief is SUMMARILY DISMISSED. Further, since the Motion
for Appointment of Counsel seeks counsel for an untimely postconviction relief
motion, it is DENIED.

IT IS SO ORI)ERED.

 

Fer?ris W. Wham}n, J.

oc: Prothonotary
cc: Investigative Services

 

19 Id

