     IN THE SUPREME COURT OF THE STATE OF DELAWARE

BEN ROTEN,                             §
                                       §    No. 266, 2014
      Defendant Below,                 §
      Appellant,                       §    Court Below – Superior Court
                                       §    of the State of Delaware,
      v.                               §    in and for Sussex County
                                       §    Cr. ID No. 0907011738
STATE OF DELAWARE                      §
                                       §
      Plaintiff Below,                 §
      Appellee.                        §

                          Submitted: July 22, 2014
                          Decided: August 15, 2014

Before STRINE, Chief Justice, HOLLAND and RIDGELY, Justices.

                                  ORDER

      This 15th day of August 2014, having carefully considered the

appellant’s opening brief, the appellee’s motion to affirm, and the record on

appeal, the Court has determined that the judgment of the Superior Court

should be affirmed on the basis of the reasons stated by the Superior Court

in its letter decision dated May 8, 2014.

      In addition, although not addressed by the Superior Court, the

appellant’s claim is also procedurally barred by Superior Court Criminal

Rule 61(i)(3). That subsection precludes the appellant from making a claim

not asserted in the proceedings leading to the judgment of conviction. The

appellant failed to raise either on direct appeal or in subsequent post-trial
motions his argument that a plea of nolo contendere cannot qualify as a

predicate offense. Because the appellant has failed to demonstrate cause for

failing to raise his claims previously and has not shown that his failure to do

so prejudiced his rights, his claim cannot overcome the procedural hurdle

that Rule 61(i)(3) presents.    For similar reasons, the appellant likewise

cannot demonstrate a “colorable claim that there was a miscarriage of justice

because of a constitutional violation” under Rule 61(i)(5).

      NOW, THEREFORE, IT IS ORDERED that the motion to affirm is

GRANTED. The judgment of the Superior Court is AFFIRMED.

                                       BY THE COURT:

                                       /s/ Randy J. Holland
                                       Justice




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