IN THE SUPERIOR COURT OF THE STATE OF DELAWARE

STATE OF DELAWARE

v. I.D. No. 0702002298

JOSE D. BEZAREZ,

Defendant

Subrnitted: May 31, 2018
Decided: August 14, 2018

On Defendant’s Third Motion for Postconviction Relief.
SUMMARILY DISMISSED.
On Defendant’s Motion for Appointment of Counsel.
DENIED.

ORDER

Joseph S. Grubb, Esquire, Deputy Attorney General, Department of Justice,
Wilrnington, Delaware, Attorney for the State.

Jose D. Bezarez, J ames T. Vaughn Correctional Center, Smyrna, DelaWare,
pro se.

COOCH, R.J.

This M’pday of August, 2018, upon consideration of Defendant’s third
Motion for Postconviction Relief and Motion for Appointment of Counsel, it
appears to the Court that:

1. The facts of this case were set forth in this Court’s opinion issued on
June 22, 2010 as follows:

On March 19, 2007, Defendant, Jose Bezarez, Was indicted on four
counts of Reckless Endangering First Degree stemming from a

Shooting that occurred at an apartment building in New Castle.
Defendant allegedly discharged a firearm in an apartment located
directly above the victims’ apartment and the bullets from
Defendant’s weapon pierced the ceiling of the victims’ apartment
while the victims were inside of their apartment Defendant
subsequently entered a nolo contendere plea to one count of
Reckless Endangering First Degree and was sentenced to two years
of incarceration at Level V.]

On January 4, 2010, Defendant filed, pro se, his first Motion for
Postconviction Relief pursuant to Superior Court Criminal Rule 61.
This Court denied that Motion on June 22, 2010,2 and the Supreme
Court of Delaware dismissed the appeal on August 13, 2010.3

Defendant filed his second, pro se, Motion for Postconviction Relief on
March 18, 2014. This Court denied Defendant’s motion on May 12,
2014. An appeal was filed on May 27, 2014,4 and the Supreme Court
affirmed this Court’s judgment on December 23, 2014.5

Defendant has now filed, pro se, his third Motion for Postconviction
Relief along with a Motion for Appointment of Counsel. ln this Motion
for Postconviction Relief, Defendant raises one ground for relief; that
“[c]ounsel failed to property advise Bezarez as to a plea and failed to
provide him with effective representation in violation of the 6“‘, and 14th
amendment[s] of the U.S. Constitution.”

Rule 61 is the remedy for defendants “in custody under a sentence of
this court seeking to set aside the judgment of conviction . . . .”(’ This
Court “must first consider the procedural requirements of Rule 61
before addressing any substantive issues.”7 The procedural bars of Rule

 

; State v. Bezarez, 2010 WL 11470344, at *l (Del. Super. Ct. June 22, 2010).
Id.
3 Bezaerez v. Stale, 2 A.3d 73 (Del. 2010)(Table).
4 Slate v. Bezarez, 2014 WL 2119703, at *3 (Del. Super. Ct. May 12, 2014).
5Bezarez v. State, 105 A.3d 988 (Del. 2014).
6 Del. Super. Ct. Crim. R. 61.
7 State v. Sla)/_lford, 2017 WL 2484588, at *2 (Del. Super. Ct. June 7, 2017) (quoting
Braa.’ley v. Slate, 135 A.3d 748, 756 (Del. 2016)).

2

61 include timeliness,8 successiveness,9 procedural default,'O and
former adjudicationll A motion is untimely if it is filed more than one
year after the conviction is finalized or defendant asserts a new
constitutional right that is retroactively applied more than one year after
it is first recognized12 A motion is successive if it is a “second or
subsequent motion¢.”l3 If any of these bars apply, the movant must show
entitlement to relief under Rule 61(i)(5).14 The contentions in a Rule 61
motion must be considered on a “claim-by-claim” basis.15

6. As this is Defendant’s third Motion for Postconviction Relief, it is
repetitive pursuant to Superior Court Criminal Rule 6l(i)(2). Under
Rule 61(i)(2), successive motions are barred unless the defendant
satisfies the pleading requirements of 6l(d)(2):

(i) plead[] 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)
plead[] with particularity a claim that a new rule of constitutional
law, made retroactive . . . applies to the movant's case and renders
the conviction . . . invalid.]6

7. Neither exception to successive motions applies here, as Defendant
fails to plead with particularity that new evidence exists, or that a new
constitutional rule applies retroactively. Defendant appears to argue
that the Supreme Court of the United States announced a new rule of
constitutional law, made retroactive, in Lee v. United States.'7
However, Lee held that counsel’s advice, concerning deportation
consequences of defendant’s guilty plea, prejudiced the defendant.'8
Upon the Courts review, it does not appear that the Defendant has

 

8 Id. at *2 (citing Del. Super. Ct. Crim. R. 61(i)(l)).

9 Id. (citing Del. Super. Ct. Crim. R. 6l(i)(2)).

'0 Id. (citing Del. Super. Ct. Crim. R. 61(i)(3)).

" Ia'. (citing Del. Super. Ct. Crim. R. 6l(i)(4)).

12 Del. Super. Ct. Crim. R. 61(i)(1).

13 Del. Super. Ct. Crim. R. 61(i)(2).

14 Stanford, 2017 WL 2484588, at *2.

'5 State v. Reyes, 155 A.3d 331, 342 n.15 (Del. 2017) (holding that “Rule 61 analysis should
proceed claim-by-claim, as indicated by the language of the rule.”).
'6 Del. Super. Ct. Crim. R. 61(d)(2)(i)&(ii).

17 Def.’s Third Mot. for Postconviction Relief at 7.

18 Lee v. United Sfal`es, 137 S. Ct. 1958, 198 L. Ed. 2d 476 (2017).

3

claimed with particularity a new rule of constitutional law that applies
to his case and renders his conviction invalid.

8. Accordingly, as Defendant has failed to overcome the procedural bar to
successive motions for postconviction relief, Defendant’s third Motion
for Postconviction Relief is summarily dismissed, as required by Rule
61(d)(2).

9. Additionally, because Defendant failed meet the pleading requirements
of Rule 61(d)(2), Defendant’s Motion for Appointment of Counsel
must also be denied.

10. Therefore, Defendant’s Third Motion for Postconviction Relief is
SUMMARILY DISMISSED and Defendant’s Motion for
Appointment of Counsel is DENIED.

IT IS SO ORDERED.

l\~w.€\/MMA

Richard R. Cooch, R.J.

Joseph S. Grubb, Esquire
Jose D. Bezarez
Prothonotary
Investigative Services

