IN THE SUPERIOR COURT OF THE STATE OF DELAWARE

STATE OF DELAWARE )

v. § I.D. No. 1412002671
ROBERT MILLER, §

Defendant. §

Submitted: August 22, 2018
Decided: August 27, 2018

Upon Defendant’s Motion to Withdraw Guilty Plea,
SUMMARILY DISMISSED.

M

Robert Miller, pro se, Wilmington, DE.

Renee Hrivnak, Esquire, Deputy Attorney General, Depar“cment of Justice, 820 N.
French St., Wilmington, Delaware, Attorneys for the State.

WHARTON, J.

This 27th day of August, 2017, upon consideration of Defendant’s Motion to
Withdraw Guilty Plea and the record in this matter, it appears to the Court that:

l. Defendant Robert Miller (“Miller”) Was indicted by the Grand Jury on
a single count of assault second degree. On June 9, 2015, Miller pled guilty to that
charge. In exchange, the State dropped a charge of offensive touching in the Court
of Common Pleas and agreed to cap its sentencing recommendation of unsuspended
incarceration at three years. On December 5, 2015, the Court sentenced Miller to
eight years of incarceration pursuant to 1 1 Del. C. § 4204(k), followed by six months
at Level IV pursuant to ll Del. C. § 4204(1).

2. Miller appealed his conviction to the DelaWare Supreme Court. That
court entered an Order affirming his conviction on May 18, 2016.l A Motion for
Postconviction Relief (“first PCR motion”) pursuant to Superior Court Criminal
Rule 61, Miller’s first, Was timely filed on December 14, 2015. The first PCR
motion raised a single issue of ineffective assistance of counsel and did not request
appointment of counsel.

3. In his first PCR motion, Miller claimed that: (1) counsel failed to obtain
hospital records of the victim that Would have shown her injuries Were old, despite
being asked to obtain them; (2) counsel never responded to voice mail messages; (3)

counsel only discussed taking the plea With Miller; and (4) after sentencing, Miller

 

l]\liller v. State, 2016 WL 3410306 (Del. May 18, 2016).
2

asked counsel about an appeal without response.2 This Court denied the motion on
October 18, 2016.3 Miller’s untimely appeal of that decision was dismissed4

4. Miller filed his second Motion for Postconviction Relief (“second PCR
motion”) on September 25, 2017.5 In it he incorrectly represented that the basis of
his conviction was the finding of a judge in a non-jury trial, when, in fact, Miller
entered a guilty plea.6 He raised a single claim for relief - that there was newly
discovered evidence that the victim’s wounds were old, occurring in 2009 -2010,
and that she was seen for these injuries at the Wilmington Hospital.7 The Court
summarily dismissed the second PCR motion on September 27, 2017.8 lt does not
appear that Miller appealed from that decision.

5. Miller filed this motion, which he captions Motion to Withdraw Guilty
Plea, on August 22, 2018.9 Because requests to withdraw a plea of guilty after
sentencing must be made by motion under Superior Court Rule 61, the Court treats
this motion as Miller’s third PCR motion,10 In it Miller stubbornly returns to his
pointless effort to convince the Court of something that plainly just is not true - that

the victim’s injuries in this case were actually pre-existing injuries for which medical

 

2 Mot. for Postcoviction Relief, D.I. 16.

3 State v. Miller, 2016 WL 6094170 (Del. Super. Oct. 18, 2016).
4Miller v. State, 2017 WL 568362 (Del. Feb. 9, 2017).

5 Mot. for Postconviction Relief, D.I. 32.

6Ial., at 11 6.

7Ial., at 3.

8State v. Miller, 2017 WL 4381381 (Del. Super. Sept. 27, 2017).
9 Mot. to Withdraw Guilty Plea, D.I. 42.

10 Super. Ct. Crim. R. 32(d).

records were never subpoenaed. But he adds a new wrinkle - that the offense should
have been treated as either assault third degree because no weapon was involved and
there was no intent to cause physical injury, or offensive touching.ll

6. Before addressing the merits of a defendant’s motion for postconviction
relief, the Court must first apply the procedural bars of Superior Court Criminal Rule
61(i).12 If a procedural bar exists, then the Court will not consider the merits of the
postconviction claim.13

7. Under Delaware Superior Court Rules of Criminal Procedure, a motion
for postconviction relief can be barred for time limitations, successive motions,
procedural defaults, and former adjudications A motion exceeds time limitations if
it is filed more than one year after the conviction becomes final or if it asserts a
newly recognized, retroactively applied right more than one year after it was first
recognized.14 A second or subsequent motion is considered successive and therefore
barred and subject to summary dismissal unless the movant Was convicted after a
trial and “pleads with particularity that new evidence exists that the movant is
actually innocent” or “pleads 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

 

11 D.I. 42 at 3.

'2 Younger v. State, 580 A.2d 552, 554 (Del. 1990).
'3Ia’.

14 Super. Ct. Crim. R. 6l(i)(l).

and renders the conviction invalid.”15 Grounds for relief “not asserted in the
proceedings leading to the judgment of conviction” are barred as procedurally
defaulted unless the movant can show “cause for relief” and “prejudice from [the]
violation.”16 Grounds for relief formerly adjudicated in the case, including
“proceedings leading to the judgment of conviction, in an appeal, in a post-
conviction proceeding, or in a federal habeas corpus hearing” are barred.17

8. Summary dismissal is appropriate if it plainly appears from the motion
for postconviction relief and the record of prior proceedings in the case that the
movant is not entitled to relief.18

9. In applying the procedural bars of Rule 61(i), it appears that the third
PCR motion is untimely and successive Further, to the extent the third PCR motion
relies on a claim that the victim’s injuries were old, it is barred as previously
adjudicated19 To the extent this motion raises a new claim that the only permissible
offenses for which he could have been convicted were assault third degree and

offensive touching, that claim is procedurally defaulted as not having been asserted

 

15 Super. Ct. Crim. R. 61(i)(2); Super. Ct. Crim. R. 61(d)(2).

16 Super. Ct. Crim. R. 61(i)(3).

11 Super. Ct. Crim. R. 61(i)(4).

111 Super. Ct. Crim. R. 61(d)(5).

1°Not only is this claim barred, but on its face, it is so lacking in any conceivable
merit that, had it been advanced by a lawyer, that lawyer would have been subject
to sanctions under Superior Court Civil Rule ll(c). See, State v. Miller, 2016 WL
6094170 at *3 (Del. Super. Oct. 18, 2016) (“The Court has viewed the photographs
[of the victim’s injuries] itself and they establish to a certainty that Miller’s claim
that the victim’S injuries were old is false.”).

5

previously.20 The Supreme Court affirmed his conviction and sentence on May 18,
2016 after reviewing the record and finding that his appeal was “wholly without
merit and devoid of any arguably appealable issue.”21 His second postconviction
relief motion was untimely because it was filed on September 25, 2017. While he
alluded to the victim’s injuries being old in his first postconviction relief motion, he
did so in the context of his ineffective assistance of counsel claim. In his second
PCR motion, he claimed the existence the victim’s old injuries was newly discovered
evidence. In summarily dismissing Miller’s second PCR motion, the Court found
that Miller’S attempts to claim that the victim’s injuries were old as newly discovered
evidence failed because he made the same allegation in his first postconviction relief
motion in the context of his ineffective assistance of counsel claim.22 Further,
because Miller was not convicted at trial, but, rather, entered a guilty plea, the Court
held that Rule 61(d)(2) required that Miller’s Second PCR motion be Summarin
dismissed as well.

10. Thus, the Court finds that it plainly appears from Miller’s third PCR

motion and the record of prior proceedings in this case that Miller is not entitled to

 

10 This claim also has no merit. No weapon is required for the commission of
assault second degree, nor is it required that the defendant act intentionally. See 11
Del. C. § 6ll(a)(1). Moreover, the victim’s injuries were clearly serious. See,
State v. Miller, 2016 WL 6094170 at *2 (Del. Super. Oct. 18, 2016) (“The
prosecutor described the photographs [of the victim’s injuries] this way: ‘ . . .the fact
that her face fell on the one side as a result of the strike...She had to have surgery
to fix her eye, and she had multiple fractures as a result of that hit.”’).

21Miller v. State, 2016 WL 3410306 at *1 (Del. May 18, 2016).

12 State v. Miller, 2017 WL4381381, at *1 (Del. Super. Sept. 27, 2017).

6

relief, since Rules 61(i)(1), (2), (3), and (4) bar relief, none of the bars to relief are
inapplicable under Rule 61(i)(5), and the motion otherwise is without any merit.

THEREFORE, Defendant’s Motion to Withdraw Guilty Plea, treated and his
third Motion for Postconviction Relief, is SUMMARILY DISMISSED.

IT IS SO ORDERED.

 

/

/ f
F@rri w. Whar&)h/, J.

oc: Prothonotary
cc: Investigative Services

