IN THE SUPERIOR COURT OF THE STATE OF DELAWARE
STATE OF DELAWARE
I.D. No. 0210013335A

V.

BRYAN L. DAWKINS,

\./\/\./\/\/\./\./

Defendant.

Subrnitted: May 9, 2017
Decided: July 28, 2017

Upon Defendant’s Fifth Motion for Postconviction Relief:
SUMMARILY DISMISSED

Upon Defendant’s Motion for Appointment of Counsel:
DENIED

This 28th day of July, 2017, upon consideration of the Motion for
Postconviction Relief and Motion for Appointrnent of Counsel filed by Bryan L.
Dawkins, the record in this matter, and Superior Court Crirninal Rule 61 (“Rule
61”), it appears to the Court that:

l. Dawkins Was convicted on April 29, 2004 of First Degree Murder,
Possession of a Deadly Weapon during the Cornmission of a Felony, and
Endangering the Welfare of a Child. The Delaware Suprerne Court affirmed
Dawkins’ conviction on direct appeal. Since that time, Dawkins has filed four

motions for postconviction relief, all of Which have been denied by this Court.l

 

]See D.I. 159, 166, 172, 179.

2. Dawkins filed his fifth motion for postconviction relief (the
“Postconviction Motion”) on May 9, 2017, asserting this Court lacked jurisdiction
over the case, the jury instructions improperly shifted the burden of proof to
Dawkins, the jury instructions Were “erroneous” in several respects, and his trial
counsel Was ineffective2 DaWkins also flled a motion seeking appointment of
counsel to represent him in pursuing postconviction relief.3

3. Before addressing the merits of any claim for postconviction relief,
this Court first must determine Whether the motion procedurally is barred under
Rule 61 .4 Because the Postconviction Motion is Dawkins’ fifth such motion under
Rule 61, it is barred and must summarily be dismissed unless DaWkins meets Rule
61’s pleading requirements Rule 61(d) permits a second or subsequent motion
only if (i) the movant Was convicted after a trial; and (ii) the motion pleads With
particularity that either: (a) new evidence creates a strong inference the movant
actually is innocent in fact, or (b) a new rule of constitutional laW, made retroactive

to cases on collateral review, applies to the movant’s case and renders the

 

2 D.I. 189.
3 D.I. 19().
4 Bailey v. State, 588 A.Zd 1121, 1127 (Del. 1991); Younger v. Sl‘ate, 580 A.Zd 552, 554 (Del.

1990).
2

conviction invalid.5 The bar to successive motions also does not apply to a claim
that the trial court lacked jurisdiction.6

4. Dawkins’ claims that the jury instructions were erroneous, that the
Court improperly shifted to Dawkins the burden of proof, or that his trial counsel
was ineffective are barred under Rule 61(i)(2)’s prohibition against successive
postconviction motions and, with one exception, under Rule 61(i)(3)’s bar against
a defendant raising claims that were not raised in the proceedings leading up to his
conviction.7 Dawkins has not pleaded with particularity that (i) new evidence
exists creating a strong inference of actual innocence, or (ii) a new rule of
constitutional law, made retroactive to his case, applies and renders his conviction
invalid. As to Dawkins’ claim that this Court lacked jurisdiction, Dawkins
advances two arguments: (1) venue was improper, and (ii) the indictment against
Dawkins was invalid.

5. With respect to venue, Dawkins concedes this crime occurred in New
Castle County, Delaware, which is the county in which Dawkins was tried and
convicted. Dawl<ins argues, however, that venue was improper because his

preliminary hearing occurred in Sussex County, Delaware, “establishing

 

5 Super. Ct. Crim. R. 61(d).
6Ia'. 61(i)(5).
7 See id. 61(i)(3). This procedural bar would not apply to Dawkins’ ineffective assistance of

counsel claims.
3

jurisdiction in and for Sussex County . . . [and] thereby precluding the jurisdiction
of New Castle County to try defendant.”8 This argument does not overcome Rule
6l’s procedural bars. First, venue was proper because Dawkins was tried in the
county in which the crime was committed.9 Even if Dawkins’ preliminary hearing
occurred in Sussex County, that fact did not transfer venue to that county. Second,
the argument that Dawkins was not tried in the proper venue is not a jurisdictional
claim excused from Rule 61’s procedural bars. Claims of improper venue are
waived if they are not raised in a timely manner.‘O

6. Dawl<ins’ claim that his indictment was defective is based on his
contention that the State improperly indicted him for felony murder based on the
underlying felony of kidnapping, even though “the State conceded that no
kidnapping occurred.”ll Dawkins’ argument is difficult to understand, let alone
summarize, but it fails to state a jurisdictional claim that would overcome Rule
61 ’s procedural bars for a very basic reason: Dawkins was not convicted of felony

murder. Rather, although Dawkins was indicted for both intentional murder and

 

8 D.I. 189 (“Summary of Arguments”).

9 See Super. Ct. Crim. R. 18 (“Except as otherwise provided by statute or by these rules, the
prosecution shall be had in the county in which the offense is alleged to have been committed.”).
10 Ia’. l2(b) (“The following [motions] must be raised prior to trial: (1) Defenses and objections
based on defects in the institution of the prosecution; or (2) Defenses and objections based on
defects in the indictment . . . (other than that it fails to show jurisdiction in the court or to charge
an offense . . .).”); State v. Smolhers, 1962 WL 70241, at *2 (Del. Super. Dec. 27, 1962) (holding
defendants waived the right to challenge venue by failing to raise the defense before trial).

“D.1.189at2.
4

felony murder, he only was convicted of intentional murder.12 To the extent
Dawkins argues the presentation of the felony murder or kidnapping charges
“tainted” the jury and led improperly to his conviction for other charges, that is not
a jurisdictional claim.13

7. Dawkins also moved for appointment of counsel to represent him in
his Postconviction l\/lotion, Under Rule 61(h), counsel may be appointed for a
defendant’s second or subsequent postconviction motion only if the judge
determines the motion satisfies Rule 61(d)(2)’s pleading requirements As set
forth above, Dawkins does not satisfy these pleading requirements Accordingly,
the Court may not appoint counsel to represent Dawkins

In summary, Dawkins’ fifth Motion for Postconviction Relief procedurally
is barred and Dawkins fails to plead any basis to overcome those procedural
defects The Motion for Postconviction Relief therefore SUMMARILY IS
DISMISSED. Dawkins’ Motion for Appointment of Counsel is DENIED.
t /

1/%/

Abig 1M,\11éG§-'E>w, fhdge

IT IS SO ORDERED.

Original to Prothonotary
cc: J ames V. Apostolico, Deputy Attorney General
Bryan L. Dawkins, pro se (SBI No. 00260596)

 

12 The jury found Dawkins not guilty of Felony Murder, Kidnapping, and two associated counts
of Possession of a Deadly Weapon during Commission of a Felony.

13 See D.I. 189 at 5-1().
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