SUPERIOR COURT
OF THE
STATE OF DELAWARE

RICHARD F. STOKES SUSSEX COUNTY COURTHOUSE
JUDGE 1 THE CIRCLE, sUITE 2

GEoRGEToWN, nn 19947

TELEPHONE (302) 856-5264

August 13, 2018

Alonzo J. Payne

SBI # 00398336

J ames T. Vaughn Correctional Center
1181 Paddock Road

Smyrna, Delaware 19977

RE: State of Delaware v. Alonzo J. Payne,
Case ID# 1308012898A

DATE SUBMITTED: July 18, 2018
Dear Mr. Payne:

Defendant Alonzo J. Payne (“Defendant”) has filed his second Motion for Postconviction
Relief pursuant to Superior Court Criminal Rule 6l (“Rule 61 ").1 For the reasons expressed below
the motion is DENIED.

On February 26, 2014, after a jury trial, Defendant Was found guilty of one count of
Robbery in the First Degree, one count of Possession of a Firearm During the Commission of a
Felony (“PFDCF”), and one count of Tarnpering With Physical Evidence. On May 23, 2014,
Defendant was sentenced as follows: for Robbery in the First Degree, to serve 25 years at Level

Five; for PFDCF, to serve 25 years at Level Five; and for Tampering With Physical Evidence, to

 

1 The applicable version of Rule 61 is that effective on June 4, 2014, as amended by an order oi" this Court dated
March 23, 2017.

serve two years at Level Five, suspended for one year at Level Three. At sentencing, Defendant
was declared a habitual offender.2 Defendant filed an appeal to the Delaware Supreme Court on
September 7, 2001. The Supreme Court Affirmed Defendant’s conviction on March 30, 2015.3
On April 17, 2015, the Supreme Court mandate was filed, finalizing Defendant’s conviction.4

On May 15, 2015, Defendant filed his first Postconviction Motion. On January 18, 2017,
the Superior Court denied Defendant’s Motion.5

On July 18, 2018, Defendant filed his second Motion for Postconviction Relief. He makes
two claims: (1) that this Court violated his Fourteenth Amendment right and abused its discretion
When denying his Motion for Judgment of Acquittal and (2) that his Sixth Amendment right to
counsel was violated when his attorney did not raise his initial claim on appeal.

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.6 Both Rule

 

2 Docket Entry No. 44.

3 Payne v. State, 2015 WL 1496061,(D61.March 30, 2015).
4Docket Entry No. 66.

5 State v. Payne, 2017 WL 325177 (Del. Super. Ct. Jan. 18, 2017).

6 Super. Ct. Crim. R. 61(i) provides:

(i) Bars to Relief. (l) T ime 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 lule 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 defaulz. 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.

61(i)(1) and (2) require this motion to be summarily dismissed. First, a motion for postconviction
relief cannot be filed more than one year after the judgment is final.7 Given that Defendant’s
conviction was final on April 17, 2015, 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.8

Defendant is unable to meet either criteria. He has not alleged that new evidence exists

that creates a strong inference of actual innocence or that a new rule of constitutional law applied
retroactively to render his conviction invalid. He is simply attempting to re-litigate trial matters.

In addition, Defendant filed a Motion for Modification of Sentence under Rule 35 with his

Motion for Postconviction Relief. Under Rule 35, a Motion for Modification of Sentence made
more than 90 days after the imposition of the sentence may only be considered in extraordinary

circumstances9 No such circumstances exist in this case. Therefore, Defendant’s Motion for

Modification of Sentence is denied.

 

(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.

7 See Rule 61(i)(1)
8 See Rule 61(i)(2); 61(d)(2)(i), (ii).
9 Super. Ct. Crim. R. 35(b).

Considering the foregoing, Defendant’s Motion for Postconviction Relief and Motion for
Modification of Sentence are DENIED. As Defendant’s Motion for Postconviction relief is
denied, Defendant’s Motion for Appointment of Counsel is also DENIED.

IT IS SO ORDERED.

 

cc: Prothonotary’s Office

