                                              SUPERIOR COURT
                                                  OF THE
                                            STATE OF DELAWARE

RICHARD F. STOKES                                                            SUSSEX COUNTY COURTHOUSE
                  JUDGE                                                                      1 THE CIRCLE, SUITE 2
                                                                                            GEORGETOWN, DE 19947
                                                                                           TELEPHONE (302) 856-5264




                                            September 13, 2016



Wayne A. King
SBI# 00274612
James T. Vaughn Correctional Center
1181 Paddock Road
Smyrna, DE 19977

        RE: State of Delaware v. Wayne A. King,
            Def. ID# 0908004017

                                  DATE SUBMITTED: August 30, 2016

Dear Mr. King:

        Defendant Wayne A. King (“Defendant”) has filed his second Motion for Postconviction

Relief pursuant to Superior Court Criminal Rule 61 (“Rule 61").1 For the reasons expressed

below the motion is summarily dismissed.

        On November 24, 2009, Defendant pled guilty to Possession of a Firearm During the

Commission of a Felony (“PFDCF”), Conspiracy in the Second Degree, and Robbery in the First

Degree. Defendant was sentenced as follows: for PFDCF, five years at Level Five, of which all

time is mandatory; for Conspiracy in the Second Degree, one year at Level Five, not subject to

early release; and for Robbery in the First Degree, 20 years at Level Five, suspended after four

years for one year of supervision at Level Four followed by three years at Level Three. No
1
 The applicable version of Rule 61 is that effective on June 4, 2014, as amended by an order of this Court dated
May 29, 2015.

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direct appeal was filed; therefore, the conviction became final on December 24, 2009. Defendant

filed his first Motion for Postconviction Relief on May 12, 2010, which was predicated upon a

claim of ineffective assistance of counsel. The motion failed because Defendant was unable to

show that his counsel’s representation fell below an objective standard of reasonableness.2

         On August 29, 2016, Defendant filed his second Motion for Postconviction Relief. He

claims it was improper for the Deputy Attorney General (“DAG”) to file a Motion to Declare

Defendant an Habitual Offender on the day of the plea and sentencing. Defendant erroneously

believes that a written motion must be served at least two days prior to a hearing under Superior

Court Rule of Criminal Procedure 45.3

         The first step in evaluating a motion under Rule 61 is to determine whether any of the

procedural bars listed in Rule 61(i) will force the motion to be procedurally barred.4 Both Rule

61(i)(1) and (2) require this motion to be summarily dismissed.                               First, a motion for


2
  State v. King 2010 WL 2136532 (Del. Super. May, 27, 2010) (denying Defendant’s first Motion for Postconviction
Relief).
3
  Rule 45 is applicable to subpoenas and, therefore, inapplicable to this motion.
4
  Super. Ct. Crim. R. 61(i) provides:
          (i) Bars to Relief. (1) Time limitation. A motion for postconviction relief may not be filed more than one
          year after the judgment of conviction is 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 is first recognized by
          the Supreme Court of Delaware or by the United States Supreme Court.
          (2) Successive motions. (i) No second or subsequent motion is permitted under this Rule unless that second
          or subsequent motion satisfies the pleading requirements of subparagraphs (2)(i) or (2)(ii) of subdivision
          (d) of this rule. (ii) Under paragraph (2) of subdivision (b) of this Rule, any first motion for relief under
          this rule and that first motion's amendments shall be deemed to have set forth all grounds for relief
          available to the movant. That a court of any other sovereign has stayed proceedings in that court for
          purpose of allowing a movant the opportunity to file a second or subsequent motion under this rule shall
          not provide a basis to avoid summary dismissal under this rule unless that second or subsequent motion
          satisfies the pleading requirements of subparagraphs (2)(i) or (2)(ii) of subdivision (d) of this rule.
          (3) Procedural default. Any ground for relief that was not asserted in the proceedings leading to the
          judgment of conviction, as required by the rules of this court, is thereafter barred, unless the movant shows
          (A) Cause for relief from the procedural default and (B) Prejudice from violation of the movant's rights.
          (4) Former adjudication. Any ground for relief that was formerly adjudicated, whether in the proceedings
          leading to the judgment of conviction, in an appeal, in a postconviction proceeding, or in a federal habeas
          corpus proceeding, is thereafter barred.
          (5) Bars inapplicable. The bars to relief in paragraphs (1), (2), (3), and (4) of this subdivision shall not
          apply either to a claim that the court lacked jurisdiction or to a claim that satisfies the pleading
          requirements of subparagraphs (2)(i) or (2)(ii) of subdivision (d) of this rule.


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postconviction relief cannot be filed more than one year after the judgment is final.5 Given that

Defendant’s conviction was final on December 24, 2009, his motion is time-barred.

Additionally, any successive motion for postconviction relief is barred by Rule 61(i)(2) unless

the Defendant has:

            (i) [pled]...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) [pled]...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 or
            death sentence invalid.6

            Defendant has failed to make this showing.

            For the foregoing reasons, Defendant’s motion is DISMISSED.

            IT IS SO ORDERED.

                                                                 Very truly yours,



                                                                 /s/ Richard F. Stokes

                                                                Richard F. Stokes

cc: Prothonotary’s Office
    John W. Donahue, IV, Esquire
    James D. Nutter, Esquire




5
    See Rule 61(i)(1)
6
    See Rule 61(i)(2); 61(d)(2)(i), (ii).

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