IN THE SUPREME COURT OF THE STATE OF DELAWARE

JOSHUA A. COLLINS, §
§ No. 37, 2015
Defendant Below, §
Appellant, § Court Below—Superior Court of
§ the State of Delaware in and for
v. {5 Kent County
§
STATE OF DELAWARE, § Cr. ID No. 091 1013039
§
Plaintiff Below, §
Appellee. §

Submitted: June 4, 2015
Decided: August 6, 2015

Before VALIHURA, VAUGHN and SEITZ, Justices.
O R D E R

This 6lh day of August 2015, upon consideration of the appellant’s opening
brief and the appellee’s motion to affirm under Supreme Court Rule 25(a), it
appears to the Court that:

(1) The appellant, Joshua A. Collins (“Collins”), ﬁled this appeal from
the Superior Court’s summary dismissal of his second motion for postconviction
relief under Superior Court Criminal Rule 61 (“Rule 6]”). The State has moved to
afﬁrm the Superior Court’s judgment on the ground that it is manifest on the face
of the opening brief that the appeal is without merit.

(2) In January 2010, Collins was indicted on nineteen drug and weapon

offenses. On March 30, 2010, with the assistance of counsel, Collins pled guilty to

four counts, including Trafﬁcking in Heroin, and the State entered a mile prosequi
on the other ﬁfteen counts. The Superior Court immediately sentenced Collins to a
total of forty-one years at Level V suspended after eight years for probation.

(3) On March 12, 2014, Collins ﬁled a motion for postconviction relief
alleging that he had received ineffective representation from his counsel. The
motion also requested the appointment of counsel. By order dated March 27,
2014, the Superior Court dismissed the postconviction motion as time-barred under
Rule 61(i)(l) and denied the request for appointment of counsel as moot. On
appeal, this Court afﬁrmed the judgment, ruling that Collins’ “conclusory and
speculative assertions of ineffective assistance of counsel” did not excuse the Rule
61(i)(1) time bar and did not establish good cause for the appointment of counsel.l

(4) Collins ﬁled his second motion for postconviction relief on September
9, 2014. In the motion, Collins alleged that the State’s failure to disclose
misconduct in the Ofﬁce of the Chief Medical Examiner (“OCME”) violated his
right to due process under Brady v. Maryland.2 By order dated January 23, 2015,
the Superior Court summarily dismissed Collins’ second postconviction motion as

procedurally barred. This appeal followed.

I Collins v. State, 2014 WL 2609107, at *2 (Del. June 9, 2014).

2 See Brady v. Mw'yland, 373 US. 83, 87 (1963) (holding that “suppression by the prosecution
of evidence favorable to an accused upon request violates due process where the evidence is
material either to guilt or to punishment").

[\J

(5) On appeal, Collins contends that his claim under Brady v. Maryland
was reviewable under Rule 61(i)(5), and that the Superior Court erred when
dismissing his second postconviction motion. Also, Collins contends that the
Superior Court erred when it did not appoint counsel to represent him on his ﬁrst
and second postconviction motions.

(6) Having careﬁilly considered the parties’ positions on appeal, the Court
concludes that the Superior Court did not abuse its discretion when dismissing
Collins’ second postconviction motion as procedurally barred. First, the motion
was controlled by the version of Rule 61(i)(5) in effect on September 9, 2014 when
the motion was ﬁled,3 not by the former version of the rule as Collins contends.4
The motion was properly dismissed under Rule 61(i)(5) because Collins was
convicted after a guilty plea and had not raised a retroactively applicable new rule

of constitutional law.5

3 Effective June 4, 2014, Rule 61(i)(5) provides relief when a motion that is otherwise barred
under Rule 61(i)(l) through (4) satisﬁes the pleading requirements of Rule 61(d)(2). Under Rule
61(d)(2), a second or subsequent motion for postconviction relief is summarily dismissed unless
the movant was convicted after a trial and the motion either pleads with particularity (i) the
existence of new evidence that creates a strong inference of actual innocence or (ii) a claim that a
new rule of constitutional law, made retroactive to cases on collateral review by the US

Supreme Court or the Delaware Supreme Court, applies and renders the conviction invalid. Del.
Super. Ct. Crim. R. 61(i)(5), (d)(2) (2015).

4 Under the prior version of Rule 61(i)(5), the bars to relief in Rule 61(i)(l) through (3) did not
apply “to a colorable claim that there was a miscarriage of justice because of a constitutional
violation that undermined the fundamental legality, reliability, integrity or fairness of the
proceedings leading to the judgment of conviction.” Del. Super. Ct. Crim. R. 61(i)(5) (2014).

5 See supra note 3.

(7) Second, even assuming that the prior version of Rule 61(i)(5) applied
to Collins’ second postconviction motion, the Court concludes, under our January
2015 Opinion in Brown v. State, that Collins’ claim under Brady v. Maryland did
not warrant review. In Brown v. State, when afﬁrming the denial of postconviction
relief, we rejected the defendant’s claim that he was entitled to withdraw his guilty
plea because of evidence of misconduct in the OCME that, according to the
defendant, the State was required to disclose under Brady 12. Maryland.6 We
concluded that evidence of the OCME investigation was impeachment evidence
only, and that the defendant was not entitled to disclosure of such evidence before
entering his plea agreement.7 Moreover, in the context of the Brown case, we held
that the defendant’s knowing, intelligent, and voluntary guilty plea waived any
right he had to test the strength of the State’s evidence against him at trial,
including the chain of custody of the drug evidence.8

(8) Although the Court noted in Brown that the decision was limited to
the case before it, and that if materially different situations emerge, they must be
dealt with on their precise facts,9 Collins has not demonstrated, and the record does

not reﬂect, the existence of circumstances requiring a different result than in

" Brown v. State, 108 A.3d 1201, 1206 (Del. 2015).
7 Id.

3 Id. at 1205-06.

" Id. at 1206 n.29.

10
Brown.

On appeal from the dismissal of Collins’ second postconviction motion,
the Court concludes, as it did when afﬁrming the dismissal of his ﬁrst
postconviction motion, that Collins is bound by his representations on the truth-in-
sentencing guilty plea form. In those representations, Collins “freely and
voluntarily decided to plead guilty [and] understood that he was giving up his
constitutional right to hear and question the witnesses against him.”'I The Court
also concludes, under Brown v. State, that Collins is precluded from reopening his
case now to raise a claim involving impeachment evidence that would have been
relevant only at a trial.12

(9) Collins argues on appeal that the Superior Court erred when it did not
appoint counsel to represent him on his ﬁrst and second postconviction motions.
His claim is barred as formerly adjudicated and without merit. On appeal from
the denial of his ﬁrst postconviction motion, the Court concluded that Collins had

not established good cause for the appointment of counsel under then-Rule

61(e)(l).l3 “[A] defendant is not entitled to have a court re-examine an issue that

'0 The Court notes that Collins did not request and, unlike in Brown, the Superior Court did not
request, the preparation of a transcript of the guilty plea colloquy.

" Collins v. State, 2014 WL 2609107, at *2 (Del. June 9, 2014).
'3 Brown v. State, 108 A.3d 1201, 1206 (Del. 2015).

'3 Collins v. State, 2014 WL 2609107, at *2 (Del. June 9, 2014). Under Rule 61(e)(l) then in
effect, the court appointed counsel for an untimely ﬁrst postconviction motion “only in the
exercise of discretion for good cause, but not otherwise.” Del. Super. Ct. Crim. R. 6l(e)(l)

(2014).

has been previously resolved ‘simply because the claim is reﬁned or restated.”’l4
Under the version of Rule 61(e) in effect on September 9, 2014 when Collins ﬁled
his second postconviction motion, counsel was appointed only if the motion
satisﬁed the pleading requirements of Rule 61(d)(2).'5 Collins could not satisfy the
pleading requirements of Rule 61(d)(2) because he was convicted after a guilty
plea and had not raised a retroactively applicable new rule of constitutional law.I6
NOW, THEREFORE, IT IS ORDERED that the motion to afﬁrm is

GRANTED. Thejudgment of the Superior Court is AFFIRMED.

BY THE COURT:

 

'4 Skinner v. State, 607 A.2d 1170, 1172 (Del. I992) (quoting Riley v. State, 585 A.2d 719, 72]
(Del. 1990)).

'5 Del. Super. Ct. Crim. R. 6](e)(4) (2015).

'6 See supra note 3.

