SUPERIOR COURT
OF THE
STATE OF DELAWARE

E. SCOTT BRADLEY 1 The Circle, Suite 2
JUDGE GEORGETOWN, DE 19947

December 18, 2019

N443 - STATE MAIL

Russell P. Carter
SBI# 00206856 ~

James T. Vaughn Correctional = ni
1181 Paddock Road 3 a S
Smyrna, DE 19977 C mp
CO «af

Re: State of Delaware v. Russell P. Carter > & 2

Def. ID# 1511003808 2 3s

Motion for Postconviction Relief - R1 > ‘2

Dear Mr. Carter:

This is my decision on your Motion for Postconviction Relief filed on
October 4, 2019, pursuant to Superior Court Criminal Rule 61 (the “Motion”). On
May 19, 2016, you pled guilty to the felony offense of Drug Dealing (Tier 4) and
were sentenced to 25 years at supervision level 5 with credit for 6 days previously
served, suspended after 10 years for 18 months at supervision level 3. You were
ordered to report to the Sussex Correctional Institution (“SCI”) to begin serving
your sentence on July 5, 2016. You failed to report to SCI by that date and a

capias warrant for your arrest was issued on July 8, 2016. You were returned to
State custody on September 12, 2018, and were held without bail pending a review
of your sentence. At the Review of Sentencing hearing on November 1, 2018,
your sentence was modified to 25 years at supervision level 5 with credit for 90
days previously served, suspended after 11 years for 18 months at supervision
level 3.

Your Motion raises several arguments attacking the validity of your plea
agreement and the effectiveness of your trial counsel. First, you claim that your
due process rights were violated by your “illegal extradition” to the Federal
Government while in State custody (Ground I). Second, you raise contract law
issues and fundamental fairness concerns with regard to your plea agreement. You
claim that your conviction should be reversed and your sentence vacated because
the agreed terms of your plea with the State were for a deferred sentencing date of
July 5, 2016, but you were instead immediately sentenced with a deferred report
date of July 5, 2016 (Grounds II and III). Third, you argue that your trial counsel
was ineffective because he allowed you to enter into a plea agreement while
certain evidentiary matters were pending in your case (Ground IV). Fourth, you
claim that the State violated your due process rights by failing to disclose certain
“exculpatory evidence” prior to your acceptance of the plea agreement (Ground

V). Fifth, you allege that the Trial Court and your trial counsel engaged in an “ex
parte communication” that undermined your defense (Ground VI).

This is your first motion for postconviction relief. When faced with such a
claim I must first determine whether any procedural bars prevent a consideration
on the merits of any underlying arguments.' Superior Court Criminal Rule 61
requires that a motion for postconviction relief be filed within one year of a final
judgment of conviction.” This time bar does not apply to claims that a court
lacked jurisdiction, that new evidence exists showing that the movant is actually
innocent in fact, or that a new, retroactive constitutional rule applies to the
movant’s case thereby rendering the conviction invalid.’

After careful consideration of your Motion, I find that none of your claims
fall within the above referenced exceptions to Rule 61’s time bar. Therefore, your
claims must have been raised within one year of your final judgment of conviction.
You entered your guilty plea and received your sentence on May 19, 2016.
Accordingly, I find that your Motion, filed on October 4, 2019, is untimely. Your
assertion that your Motion is timely because it was filed within a year of your date
of resentencing on November 1, 2018, is flawed. Only claims challenging the

resentencing itself would have been timely had they been filed within a year of

 

' Younger v. State, 508 A.2d 552, 554 (Del. 1990).
* Super. Ct. Crim. R. 61(i)(1).
* See Super. Ct. Crim. R. 61(i)(5).
November 1, 2018. All of the claims in your Motion relate to the series of events
that occurred leading up to your guilty plea on May 19, 2016. Your resentencing
did not “re-set the post-conviction remedy clock” with respect to these claims.*
Therefore, for the reasons set forth above, I find that your Motion for

Postconviction Relief must be DENIED. IT IS SO ORDERED.

Very truly yours,

JOT La

E. Scott Bradley

ESB/tll

cc: Prothonotary

* See State v. Jones, 2016 WL 7338591, at *6 (Del. Super. Dec. 16, 2016).

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