IN THE SUPERIOR COURT OF THE STATE OF DELAWARE

STATE OF DELAWARE, )
)

)

V. ) I.D No. 1305018893

)

)

KEVIN H. BOONE, )
)

Defendant. )

ORDER

Submitted: September 5, 2019
Decided: December 23, 2019

Upon Consideration of the Commissioner’s Report and Recommendation that
Defendant’s Motion for Postconviction Relief Should Be Denied,

ADOPTED.

Kevin H. Boone, Howard R. Young Correctional Institution, Wilmington, Delaware,
Pro se.

Abigail Rodgers Layton, Esquire, Deputy Attorney General, Department of Justice,
Wilmington, Delaware. Attorney for the State.

MEDINILLA, J.
AND NOW TO WIT, this 23 day of December 2019, upon consideration
of Defendant Kevin H. Boone’s (“Defendant”) Motion for Postconviction Relief, the
Commissioner’s Report and Recommendation that Defendant’s Motion for
Postconviction Relief Should Be DENIED, and Defendant’s Motion to Withdraw
Motion for Postconviction Relief, the sentence imposed upon Defendant, and the
record in this case, it appears to the Court that:

1. On December 12, 2013, Defendant pleaded guilty to one count of
Dealing in Child Pornography and three counts of Possession of Child
Pornography.! Defendant was sentenced to twenty-four years at Level V, suspended
after three years at Level V for transitioning levels of probation.’

2. On December 20, 2017, this Court found Defendant to be in violation
of probation, where he allegedly: (1) made contact with a minor via a personal ad
posted on Craigslist; (2) had contact with a fourteen-year-old male minor, traveled
out of state with him; (3) engaged in sexual activity with that minor in both Delaware
and Pennsylvania in September and October 2017.7 Defendant was resentenced to

twelve years at Level V, suspended upon Defendant’s successful completion of the

 

! See Trial Calendar/ Plea Hearing: Pled Guilty and Sentenced, State of Delaware v. Kevin H.
Boone, 1D No. 1305018893, D.I. 11 (Del. Super. Dec. 12, 2013); see also Sentence: ASOP
Order Signed and Filed 12/20/13, State of Delaware v. Kevin H. Boone, ID No. 1305018893,
D.I. 12 (Del. Super. Dec. 12, 2013).

* Special conditions of his probation included no unsupervised contact with minors under
eighteen years of age and prohibited Defendant from internet access.

3 See Violation-of-Probation Hearing: Defendant Found in Violation, State of Delaware v. Kevin
H. Boone, ID No. 1305018893, D.I. 20 (Del. Super. Dec. 20, 2017).

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Transitions Sex Offender Program, followed by two and a half years of transitioning
levels of probation.* On February 23, 2018, Defendant filed a Motion under Rule
35(b) for Reduction of Sentence.> Defendant’s Motion was denied.® On May 4,
2018, Defendant filed a Motion under Rule 35(a) for Correction of Sentence
claiming his sentence was illegal.’ Defendant’s Motion was denied.’ Defendant
appealed to the Delaware Supreme Court.? The Supreme Court affirmed the
Superior Court’s denial of Defendant’s Motion.'°

3. On November 1, 2018, Defendant filed Motion for Postconviction
Relief (“Defendant’s Motion”).'' Defendant sought relief under 42 U.S.C. § 1983.
On April 24, 2019, the United States District Court for the District of Delaware

(“District Court”) dismissed Defendant’s federal action as legally frivolous and

 

4 See Sentence: VOP ASOP Order Signed and Filed on 12/28/17, State of Delaware v. Kevin H.
Boone, ID No. 1305018893, D.I. 21 (Del. Super. Dec. 20, 2017).

> See Defendant’s Motion for Reduction of Sentence, State of Delaware v. Kevin H. Boone, ID
No. 1305018893, D.I. 22 (Del. Super. Feb. 23, 2018).

6 See Letter Order, State of Delaware v. Kevin H. Boone, ID No. 1305018893, D.I. 23 (Del.
Super. Apr. 17, 2018).

7 See Defendant’s Motion for Correction of Sentence, State of Delaware v. Kevin H. Boone, 1D
No. 1305018893, D.I. 24 (Del. Super. May 4, 2018).

8 The Court held that Defendant’s sentence did not exceed the statutory maximum, did not
implicate double jeopardy, and was neither ambiguous nor contradictory. See Letter/Order, State
of Delaware v. Kevin H. Boone, 1D No. 1305018893, D.I. 25 (Del. Super. May 30, 2018).

9 See Notice of Appeal, State of Delaware v. Kevin H. Boone, ID No. 1305018893, D.I. 26 (Del.
Super. June 28, 2018).

10 See generally Boone v. State, 195 A.3d 481, 2018 WL 4908383 (Del. 2018) (TABLE)
(affirming denial of Defendant’s motion for correction of illegal sentence); see also Mandate
Filed from Supreme Court: Superior Court Judgment Affirmed, State of Delaware v. Kevin H.
Boone, ID No. 1305018893, D.I. 32 (Del. Oct. 29, 2018).

1! See Defendant’s Motion for Postconviction Relief, State of Delaware v. Kevin H. Boone, ID
No. 1305018893, D.I. 33 (Del. Super. Nov. 1, 2018) [hereinafter “Def.’s Mot.”].

3
without merit.'2, On May 6, 2019, Defendant filed Petition for a Writ of Habeas
Corpus with in this Court."2 On May 9, 2019, Defendant’s petition was denied."
On May 20, 2019, Defendant filed a Letter to President Judge Jurden claiming again
that his 2017 Violation of Probation (“VOP”) sentence was illegal.’> On June 21,
2019, Defendant’s Letter was forwarded to this Court for consideration.!© On
August 15, 2019, Defendant filed a Motion to File Charges on Probation Officer also
in this Court.!? Defendant’s Motion was denied.'®

4. Superior Court Criminal Rule 62(a)(5) permits the Court to refer case-
dispositive motions, including postconviction relief motions, to a Superior Court
Commissioner for “proposed findings of fact and recommendations for the
disposition, by a judge, of any such matter.”!? After the Commissioner issues a

report, “any party may serve and file written objections” to the report within ten

 

2 See generally Boone v. Prob. & Parole of New Castle Cty., DE, No. CV 18-1663 (MN), 2019
WL 1792300 (D. Del. Apr. 24, 2019).

13 See Petition For Writ of Habeas Corpus, State of Delaware v. Kevin H. Boone, ID No.
1305018893, D.I. 42 (Del. Super. May 6, 2019).

14 See Order, State of Delaware v. Kevin H. Boone, ID No. 1305018893, D.I. 45 (Del. Super.
May 9, 2019); see also Petition For Writ of Habeas Corpus Denied, State of Delaware v. Kevin
H. Boone, ID No. 1305018893, D.I. 46 (Del. Super. May 9, 2019).

15 See Defendant’s Letter, State of Delaware v. Kevin H. Boone, ID No. 1305018893, D.I. 47
(Del. Super. May 20, 2019).

16 See Letter to Defendant, State of Delaware v. Kevin H. Boone, ID No. 1305018893, D.I. 48
(Del. Super. June 21, 2019).

17 See Defendant’s Motion to File Charges on Probation Officer, State of Delaware v. Kevin H.
Boone, ID No. 1305018893, D.I. 49 (Del. Super. Aug. 15, 2019).

18 See Motion to File Charges on Probation Officer is Denied, State of Delaware v. Kevin H.
Boone, ID No. 1305018893, D.I. 53 (Del. Super. Nov. 15, 2019) (denying Defendant’s Motion
for failure to state a claim for relief under Superior Court Civil Rule 12(b)(6)).

19 DEL. SUPER. CT. CRIM. R 62(a)(5).

4
days.””. A party failing to comply with this ten-day time limit for appeal may
foreclose that party’s ability to object to the Commissioner’s report.”! A judge “may
accept, reject or modify, in whole or in part, the findings of fact or recommendations
made by the Commissioner.””* The Court conducts a de novo review “of those
portions of the report or specified proposed findings or recommendations to which
an objection is made.”

5. The Court referred Defendant’s Motion to a Superior Court
Commissioner for proposed findings of fact and conclusions of law in accordance.”*
On September 4, 2019, the Commissioner issued a Report and Recommendation that

Defendant’s Motion for Postconviction Relief should be denied (“Commissioner’s

Report”).2> On September 12, 2019, Defendant filed a Motion to Withdraw Motion

 

20 DEL. SUPER. CT. CRIM. R 62(a)(5)(ii). Defendant failed to file any written objections to the
Comm’r Report.

21 Td. at 62(b).

22 Id.

23 Td. at 62(a)(5)(iv).

24 See 10 Del. C. § 512(b)(1)(b) (2013 & Supp. 2016); DEL. SUPER. CT. CRIM. R. 62(a)(5) (Under
Delaware Superior Court Rule 62(a)(5), the Court may refer to a Superior Court Commissioner
case-dispositive motions, including postconviction relief motions, and the Commissioner must
submit “proposed findings of fact and recommendations for the disposition, by a judge, of any
such matter.”’).

5 See Commissioner’s Report and Recommendations and Order, State of Delaware v. Kevin H.
Boone, ID No. 1305018893, D.I. 50 (Del. Super. Sept. 5, 2019) [hereinafter “Comm ’r Report”].
The Comm’r Report was decided on September 4, 2019, and docketed on September 5, 2019.

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for Postconviction Relief.2° On September 19, 2019, Defendant’s Motion for
Postconviction Relief was forwarded to this Court for Final Decision.”’

6. In his Motion for Postconviction Relief, Defendant raises five claims,
alleging that: (1) the State committed prosecutorial misconduct; (2) his sentences
were illegal, both at sentencing and Defendant’s VOP hearing; (3) Defendant’s
counsel at the VOP hearing provided ineffective assistance; (4) the bedroom of
Defendant’s brother was unlawfully searched when Defendant was arrested on
November 30, 2017; and (5) a Probation Officer made dishonest statements and
committed perjury at Defendant’s VOP hearing.”® The Commissioner’s Report
outlined the various procedural bars to Defendant’s Motion, and further determined
his arguments did not meet any exceptions to these procedural bars.?”?_ The Court
addresses these procedural bars before considering the merits of the claim.*”

7. First, under Superior Court Criminal Rule 61(i)(1), a motion for

postconvinction relief, “may not be filed more than one year after the judgment of

 

26 See Defendant’s Motion to Withdraw Motion for Postconviction Relief, State of Delaware v.
Kevin H. Boone, ID No. 1305018893, D.I. 51 (Del. Super. Sept. 12, 2019) [hereinafter “Def.’s
Mot. to Withdraw”].

27 See Referral Memorandum. Rule 61 For Final Decision, State of Delaware v. Kevin H. Boone,
ID No. 1305018893, D.I. 52 (Del. Super. Sept. 19, 2019).

28 See generally Def.’s Mot.

29 See generally Comm’r Report.

3° See, e.g., Ayers v. State, 802 A.2d 278, 281 (Del. 2002); Bailey v. State, 588 A.2d 1121, 1127
(Del. 1991); see Younger v. State, 580 A.2d 552, 554 (Del. 1990) (citing Harris v. Reed, 489 U.S.
255 (1989)).

6
conviction is final....”3! Defendant’s sentence was imposed in December 2013°?
and Defendant filed this Motion in November 2018,*° almost five years after his
sentence became final.*4 Defendant’s claim of prosecutorial misconduct is subject
to the procedural bar of Rule 61(i)(1), as untimely.*°

8. Second, under Superior Court Criminal Rule 61(i)(3), “any ground for
relief that was not asserted in the proceedings leading to the judgment of conviction
... is thereafter barred,” unless Defendant can show both “[c]ause for relief from
the procedural default” and “[p|rejudice[.]”°° In this case, Defendant’s guilty plea,
which is not challenged, “constitutes a waiver of any alleged errors or defects doe

”37 Furthermore, Superior Court Criminal

occurring prior to the entry of the plea.
Rule 61(i)(3) prevents the Court from considering claims that Defendant failed to
raise on direct appeal or in a timely postconviction motion. Thus, Defendant’s

claims of prosecutorial misconduct, ineffective assistance of counsel, and bias and

dishonest statements are barred under Rule 61(i)(3).*8

 

31 DEL. SUPER. CT. CRIM. R. 61(i)(1).

32 See Trial Calendar/ Plea Hearing: Pled Guilty and Sentenced, State of Delaware v. Kevin H.
Boone, ID No. 1305018893, D.I. 11 (Del. Super. Dec. 12, 2013).

33 See Def.’s Motion.

34 Defendant’s sentence became final thirty days after the sentence was imposed. DEL. SUPER.
CT. CRIM. R. 61(m)(1).

35 Younger, 580 A.2d at 555 (finding ineffective assistance of counsel claim untimely and
procedurally barred under Rule 61(i)(1)).

36 DEL. SUPER. CT. CRIM. R 61(i)(3)(A)-(B)

37 Johnson v. State, 962 A.2d 917, 2008 WL 4830853, at *1 (Del. Nov. 7, 2008) (TABLE) (citing
Miller v. State, 840 A.2d 1229, 1232 (Del. 2003)).

38 Det. SUPER. CT. CRIM. R 61(i)(3).

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9. Third, Defendant is also barred under Superior Court Criminal Rule
61(i)(4), because he was formerly adjudicated, which includes adjudication in the
proceedings leading to the judgment of conviction, in an appeal, in a postconvinction

740 ig

proceeding, or in a federal habeas.*? Defendant’s claim of an “illegal sentence
not cognizable in a Motion for Postconviction Relief, and to the extent it is, such
claim is procedurally barred where such claim was formally adjudicated when
Defendant’s Rule 35(a) motion for correction of an illegal sentence was denied."!
Additionally, Defendant’s claim of the illegal search of his brother’s room is also
procedurally barred where Defendant raised this claim in a federal action, resulting
in a finding by the District Court that Defendant lacked standing to raise such claims
on his brother’s behalf.42 Thus, Defendant’s claims of illegal sentence and illegal
search and seizure of Defendant’s brother’s room are also barred under Rule
61(i)(4).

10. Fourth, the version of Rule 61(i)(5) in effect at the time of Defendant’s

filing states that “bars to relief in paragraphs (1), (2), (3), an (4) of this subdivision

shall not apply either to a claim that the court lacked jurisdiction or to a claim that

 

39 DEL. SUPER. CT. CRIM. R 61(i)(4).

40 Def,’s Mot. at page 3 (“Illegal sentence imposed by sentencing judge on multiple occasions
(regarding probation)”).

4! See Letter/Order, State of Delaware v. Kevin H. Boone, ID No. 1305018893, D.I. 25 (Del.
Super. May 30, 2018) (denying defendant’s Motion for Correction of Illegal Sentence).

42 See Boone v. Prob. & Parole of New Castle Cty., DE, No. CV 18-1663 (MN), 2019 WL
1792300, at *1-4 (D. Del. Apr. 24, 2019).
satisfies the pleading requirements of paragraphs (2)(i) or (2)(ii) of subdivision (d)
of this rule.’43 Defendant does not argue that the Court lacked jurisdiction,”* that
“new evidence exists that creates a strong inference” of actual innocence,” or 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 [his]
case and renders [his] conviction . . . invalid.” Defendant instead rehashes
constitutional violations of ineffective assistance of counsel and that his sentence
was illegal. As such, this untimely Rule 61 motion is procedurally barred by Rules
61(i)(1), (DG), and (i)(4), and does not meet an exception under Rule 61(1)(5).

11. Defendant has not filed any objections to the Commissioner’s Report.
Instead, Defendant filed a Motion to Withdraw Motion for Postconviction Relief
(“Motion to Withdraw”).‘7 In this motion, Defendant argues that his Motion for
Postconviction Relief is “moot,” where he has also filed a Petition for a Writ of
Habeas Corpus in Federal Court.** Defendant references the Commissioner’s Report

in his motion to withdraw, arguing that “the federal habeas corpus takes precedence

 

43 DeL. SUPER. CT. CRIM. R. 61(i)(5). The pleading requirements under Rule 61(d)(2)(i) and (2)(ii)
include pleading with particularity that new evidence exists that creates a strong inference that
Defendant is actually innocent or pleading with particularity that a new rule of constitutional law
applies retroactively to Defendant’s case.

44 DEL. SUPER. CT. CRIM. R. 61(i)(5).

45 Td. at 61(d)(2)(i).

46 Id. at 61(d)(2)(ii).

47 See generally Def.’s Mot. to Withdraw.

48 See generally id.
[sic] over all matters in lower courts regarding the same case and sentence[.]’”4?
Defendant fails to cite to any authority to support his argument. The motion he filed
is not an objection.

12. After acareful review of Defendant’s Motion for Postconviction Relief,
the Commissioner’s Report and Recommendation, Defendant’s Motion to Withdraw
Motion for Postconviction Relief, and the record, the Court adopts in toto the
findings of fact and recommendations in the Commissioner's Report. For the reasons
stated in the Commissioner’s Report, Defendant’s Motion for Postconviction Relief
is DENIED, and Defendant’s Motion to Withdraw his Motion for Postconviction
Relief is DISMISSED as moot.

IT IS SO ORDERED.

 

 

KE a . ag”
Jf Vivian L. Medint
Judge

 
      

fi

oc: Prothonotary
cc: Defendant
Department of Justice
Investigative Services

 

49 See Def.’s Mot. to Withdraw.at page 1.
10
