SUPERIOR COURT
OF THE
STATE OF DELAWARE

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

GEORGETOWN, DE 19947

TELEPHONE (302) 856-5264

June 26, 2018

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Ben Roten

SBI # 520385

J ames T. Vaughn Correctional Center
1181 Paddock Road

Smyrna, Delaware 19977

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RE: State OfDelaware v. Ben Roten,
Case ID# 0401005180

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DATE SUBMITTED: June 6, 2018
Dear Mr. Roten:

Defendant Ben Roten (“Defendant”) has filed his fourth Motion for Postconviction Relief
pursuant to Superior Court Criminal Rule 61 (“Rule 61 ").l For the reasons expressed below the
motion is DENIED.

On August 6, 2004, Defendant pled guilty to Assault in the First Degree and Aggravated
Menacing. On September 24, 2004, Defeiidant filed a pro se motion to Withdraw his guilty plea.
That Motion Was denied by the Superior Court on the same day. Defendant Was sentenced as
follows: for Assault in the First Deg,ree, twenty-five years at Level Five; for Aggravated

Menacing, five years at Level Five, suspended for six months at the Level Four Crest Program

 

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

after completion of the Key Program, followed by one year at Level Three. Defendant appealed
the Superior Court’s denial of his Motion to Withdraw Guilty Plea to the Delaware Supreme Court
on November 3, 2004. On September 15, 2005, the Supreme Court affirmed the decision.2

On February 27, 2006, Defendant filed his first Postconviction Motion. On May 18, 2006,
the Superior Court denied Defendant’s Motion.3 On June 1, 2011, Defendant filed his second
Postconviction Motion. On July 25, 2011, that Motion was denied.4 On July 30, 2013, Defendant
filed his third Postconviction Motion. On September 3, 2013, that Motion was also denied.5

On June 6, 2018, Defendant filed his fourth Motion for Postconviction Relief. He claims
that the Court violated Superior Court Criminal Rule 32 in not allowing him to review his Pre-
Sentence Report (“PSI”) before sentencing. Additionally, Defendant believes that the Court
wrongfully considered uncorroborated statements made by the victim in the PSI in order to

enhance his sentence.6

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.7 Both Rule

 

2 Roten v. State, 2005 WL 2254202 (Del. Sept. 15, 2005).

3 State v. Roten, 2006 WL 1360513 (Del. Super. Ct. May 18, 2006), ajj"d, 2007 WL 77389 (Del. Mar. 5, 2007).

4 State v. Roten, 2011 WL 3116938 (Del. Super. Ct. July 25, 2011), ajj"d, 2011 WL 6916540 (Del. Dec. 28, 2011).
5 State v. Roten, 2013 WL 4744681 (Del. Super. Ct. Sept. 3, 2013), ajj”'d 2013 WL 5808121 (Del. Oct. 28, 2013),
6 This is a variation of previously rejected claims. In 2007, Defendant’s claim that the victim suffered “mostly
superficial” injuries is belied by the medical record showing a “brain contusion and multiple complex facial
fractures.” Roten v. State, 2007 WL 773389, at *1 (Del. March 15, 2007). In 2009, in the context of a Rule 35
motion, the Supreme Court stated: “The record reflects that Roten’s victim suffered serious and permanent injuries
in the attack by Roten. Moreover, at sentencing, Roten never denied that he beat the victim or that her extensive
injuries resulted from the beating. Under these circumstances, Roten has failed to demonstrate that letters from a
third party insinuating that the victim is a liar either constitute ‘extraordinary circumstances’ under the Rule or
necessitate an evidentiary hearing on the issue.” Roten v. State, 2009 WL 2185824, at *1 (Del. July 23, 2009).

7 Super. Ct. Criin. R. 61(i) provides:

(i) Bars to Relief. (1) 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.

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.8 Given that Defendant’s
conviction was finalized nearly 14 years ago, 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.9

Thus, in order to overcome the Rule 61(i)(2) bar, Defendant would have to show that either

new evidence exists that creates a strong inference of actual innocence or that a new rule of

 

(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 rule 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 default 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.

(4) Former adjudication Any ground for relief that was formerly adjudicated, whether iii 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.

8 See Rule 61(i)(1)
9 see Ruie 61(i)(2); 6i(d)(2)(i), (ii).

constitutional law applied retroactively to his case. Defendant is unable to meet either criteria.
Furthermore, the Delaware Supreme Court stated in Hujj‘inan v. State that claims concerning Rule

32 are outside the scope of Rule 61 .10

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

IT IS SO ORDERED.

Very trul yours,

 

cc: Prothonotary’s Office

 

10 Hujj$nan v. Siaze, 2015 wL 4094234, at *4 (Dei. Juiy 6, 2015).
4

