IN THE SUPERIOR COURT OF THE STATE OF DELAWARE

STATE OF DELAWARE,
Plaintiff,
Cr. ID No. 9612002650

MARK A. KIRK,

Defendant.

Submitted: July 1, 2019
Amended: August 13, 2019
Decided: November 27, 2019

COMMISSIONER’S REPORT AND RECOMMENDATION THAT
DEFENDANT’S MOTION FOR POSTCONVICTION RELIEF (SIXTH)
SHOULD BE SUMMARILY DISMISSED

Ann Marie Puit, Deputy Attorney General, Department of Justice, Wilmington,
Delaware, Attorney for the State.

Mark A. Kirk, James T. Vaugh Correctional Center, Smyrna, DE, pro se.

SALOMONE, Commissioner
This 27" day of November 2019, upon consideration of Defendant’s sixth

Motion for Postconviction Relief, it appears to the Court that:
BACKGROUND AND PROCEDURAL HISTORY

1. On October 23, 1997, following a Superior Court bench trial, Defendant Mark
A. Kirk was found guilty of three (3) counts of Murder in the First Degree (Felony
Murder), two (2) counts of Assault in the First Degree, one (1) count of Assault in
the Third Degree and one (1) count of Arson in the Third Degree. These charges
stemmed from an incident that occurred on December 3, 1996. After an argument
with his girlfriend, Kirk poured rum on a lite stove burner in her apartment causing
a fire in the building that resulted in the death of a man and his two children as well
as serious injuries to other individuals. The Superior Court sentenced Kirk to three
terms of life imprisonment on the Felony Murder convictions, plus a total of 23 years
of Level V incarceration on the remaining convictions.
2. The Delaware Supreme Court affirmed Kirk’s conviction and sentence on
direct appeal.'
3. On February 4, 2000, Kirk filed a motion for postconviction relief pursuant to
Delaware Superior Court Criminal Rule 61 (“Rule 61”) seeking an evidentiary
hearing and a new trial. That postconviction relief motion raised three grounds for

relief including (i) ineffective assistance of counsel, (ii) falsified evidence and (iii)

 

' Kirk v. State, 734 A.2d 159 (TABLE) (Del. 1999).
unconstitutional admission into evidence of Kirk’s statements to police.2 The
Superior Court denied the motion on May 23, 2000.7 The Delaware Supreme Court
affirmed the denial of Kirk’s first Rule 61 postconviction relief motion on October
16, 2000.4

4, On May 1, 2001, Kirk filed a second Rule 61 motion for postconviction relief.
That motion raised two grounds for relief. Specifically, that (i) “no rational trier of
fact could have found the essential element[s] of arson beyond a reasonable doubt,”
and therefore the conviction was a violation of Kirk’s due process rights, and (ii) the
indictment charging him with Arson in the First Degree did not properly state the
elements of the crime and therefore could not support a conviction for Arson in the
Third Degree (a lesser included offense). On June 25, 2001, the Superior Court
summarily dismissed Kirk’s second Rule 61 motion finding that the claims raised
were procedurally barred under Rule 61 because they could have (and should have)
been raised in his first Rule 61 motion.” The Delaware Supreme Court affirmed the
denial of Kirk’s second Rule 61 motion for postconviction relief on February 12,

2002.°

 

* State v. Kirk, 2000 WL 1211214 (Del. Super. Ct.).
3 Id.

* Kirk v. State, 763 A.2d 91(TABLE) (Del. 2000).

> State v. Kirk, 2001 WL 755942 (Del. Super. Ct.).
® Kirk v. State,793 A.2d 1249 (Table) (Del. 2002).
5, On May 7, 2002, Kirk filed a federal petition for writ of habeas corpus raising,
among other things, certain Fifth Amendment violations and ineffective assistance
of counsel claims. On January 30, 2003, the United States District Court for the
District of Delaware denied Kirk’s habeas petition finding that, among other things,
(i) Kirk did not make clear and unambiguous requests to the police to cease their
interview with him, (ii) Kirk’s confession was voluntary under the totality of the
circumstances, and (iii) Kirk’s claims of ineffective assistance of counsel were
deemed exhausted, procedurally defaulted and/or did not constitute ineffective
assistance of counsel.’ On March 1, 2003 and March 19, 2003, respectively, Kirk
filed a Notice of Appeal of the District Court decision and a Motion for Certificate
of Appealability with the United States Court of Appeals for the Third Circuit.
Kirk’s motion for Certificate of Appealability was denied on July 21, 2003.

6. While his appeal to the United States Court of Appeals for the Third Circuit
was still pending, Kirk filed a third Rule 61 motion for postconviction relief with the
Superior Court on April 9, 2003. In his third Rule 61 motion, Kirk asserted that
some of his convictions should be vacated based on the Delaware Supreme Court
decision in Williams y. State. The Williams decision redefined the phrase “in

furtherance of’ with respect to Delaware’s felony murder statute and holds that

 

’ Kirk v. Carroll, 243 F. Supp.2d 125 (D. Del. 2003).
8 Williams v. State, 818 A.2d 906 (Del. 2003).
felony murder cannot attach unless the murder is a consequence of the felony and is

° Based upon the Williams decision, the

intended to help the felony progress.
Superior Court granted Kirk’s third Rule 61 motion on substantive grounds and
vacated Kirk’s three convictions for felony Murder in the First Degree and his two
convictions for Assault in the First Degree.'®

7. Although the State conceded in its response briefing that the Williams decision
required that the foregoing convictions be vacated, the State also argued that the
appropriate remedy was to modify Kirk’s judgment and convict him of the lesser
included offenses of Manslaughter (3 counts) pursuant to 11 Del. C. §632 and
Assault in the Second Degree (2 counts) pursuant to 11 Del. C. §612. Kirk, on the
other hand, argued that the appropriate remedy was for the Superior Court to enter
judgments of acquittal, or in the alternative, grant him a new trial.

8. After reviewing the evidence admitted at Kirk’s trial, the findings of fact and
conclusions of law, the Superior Court ordered a re-sentencing hearing be held at

which time a new verdict was to be entered and Kirk was to be re-sentenced for the

lesser included offenses as requested by the State.!!

 

° Id. at 912.

0 State v. Kirk, 2004 WL 396407 (Del. Super. Ct.) (In applying Williams, the Court found that
although the three murders occurred as a direct consequence of the underlying felony of arson,
Kirk did not cause those deaths in order to promote or further the fire.)

'! Jd, at 10. Consistent with the rule of law set forth by the Delaware Supreme Court in White v.
State, 576 A.2d 1322 (Del. 1990), the Superior Court determined that the judge may resentence
Kirk up to the combined duration of the original sentences without violating the constitutional
prohibition against double jeopardy or infringement of his due process rights.
9. Kirk was re-sentenced on February 1, 2005 to 10 years of Level V
incarceration on each of the three Manslaughter convictions and 8 years of Level V
incarceration on each of the two convictions for Assault in the Second Degree for a
total of 46 years of Level V incarceration. Kirk’s sentences for Arson in the Third
Degree and Assault in the Third Degree remained the same (2 years and | year at
Level V, respectively).
10. Kirk appealed the re-sentencing to the Delaware Supreme Court. His sole
claim on appeal was that the Superior Court lacked jurisdiction to enter convictions
for Manslaughter and Assault in the Second Degree because the 5-year statute of
limitations for bringing felony charges under 11 Del. C. §205(b)(1) had run.”
According to Kirk, the 5-year statute of limitations on those charges expired on
December 3, 2002, thereby rendering the February 11, 2005 Order invalid and a
violation of his due process rights.!°
11. The Delaware Supreme Court affirmed the February 11, 2005 Order of the
Superior Court.'* In so doing, the Delaware Supreme Court stated as follows:

Kirk’s, and his former counsel’s, claims that the Superior

Court’s action were barred by the statute of limitations and

violate his constitutional rights are based on the

assumption that, in implementing a remedy for the

miscarriage of justice, the Superior Court initiated a new
prosecution against Kirk. That assumption is erroneous.

 

See Kirk v. State, 2005 WL 3526325, at *2 (Del.).
13 Id.
4 Td, at *3.
Rather, the Superior Court, properly relying on the
findings of the Superior Court judge who presided over
Kirk’s trial, did no more than re-sentence Kirk on lesser-
included charges that relate back to his original
convictions. The statute of limitations is not implicated in
such a situation. Nor do we find that the remedy
implemented by the Superior Court, which was fully
consistent with well-settled Delaware law, violated any of
Kirk’s constitutional rights.!>

12. On March 21, 2007, Kirk filed a fourth Rule 61 motion for postconviction
relief claiming that newly discovered evidence warranted a new trial.'!° The Superior
Court summarily dismissed Kirk’s fourth Rule 61 motion finding that the new
evidence would not have changed the outcome of the trial, could have been
discovered before trial and was merely cumulative and impeaching.'? On December
5, 2007, the Delaware Supreme Court affirmed the denial of Kirk’s fourth Rule 61
motion.

13. In January 2008, Kirk filed a second federal petition for writ of habeas corpus

with the United States District Court for the District of Delaware. The District Court

 

15 Td. at *3. (citations omitted).

'6 “To warrant a new trial, newly discovered evidence must (1) be likely to change the result of
the trial, (2) have been discovered since the proceedings leading to the judgment and could not
have been discovered before the proceedings by the exercise of due diligence and (3) not be merely
cumulative or impeaching.” State v. Briggs, 1998 WL 1029256, at *3 (Del. Super. Ct. Dec. 7,
1998).

'7 State v. Kirk, 2007 WL 1446671 (Del. Super. Ct.)

'8 Kirk v. State, 2007 WL 4260174 (Del. 2007).
denied and dismissed the second petition for lack of jurisdiction pursuant to 28
U.S.C. §2244(b)(3).!? Kirk appealed and the District Court decision was affirmed.2°
14. On February 16, 2015, Kirk filed a fifth Rule 61 motion for postconviction
relief. By Order dated May 26, 2015, the Superior Court summarily dismissed
Kirk’s fifth postconviction motion on procedural grounds.
DEFENDANT’S RULE 61 MOTION
15. On June 26, 2019, Kirk filed his sixth Rule 61 motion for postconviction
relief. He moved to amend the pending Rule 61 motion on August 13, 2019. The
Court granted the motion to amend. In the subject motion, as amended, Kirk raises
two claims. Specifically, Kirk claims:
(1) _ the Superior Court lacked the jurisdiction to convict and sentence him
on the lesser charges of Manslaughter and Assault in the Second Degree; and
(2) “the trial court lacked the jurisdiction to try the accused, whereby, the
indictment against him was defective.”
16. In support of his claim that the Superior Court lacked the jurisdiction to
convict and sentence him on the lesser charges of Manslaughter and Assault in the
Second Degree, Kirk argues that pursuant to 11 De/. C. §205(b)(1), “[a] prosecution

for any felony except murder . . . must be commenced within 5 years after it is

 

'° Kirk v.Phelps, 596 F. Supp. 2d 835 (2009).
0 Kirk v.Phelps, 559 U.S. 983 (2010).
committed.” He acknowledges, however, that the statute of limitation does not run
“[d]uring any time when a prosecution . . . against the accused for the same conduct
has been commenced and is pending in this State.”?! According to Kirk, the
“pending prosecution” clause does not toll the statute of limitation in this case
because the prosecution against Kirk commenced on January 21, 1997 when the
initial indictment was filed and concluded on December 3, 1997 when the trial court
initially sentenced him. Therefore, according to Kirk, when the Superior Court re-
sentenced him on February 11, 2005 for the lesser included offenses, those
judgments and convictions were barred by the 5-year statute of limitation.

17. Kirk then proceeds to undercut his argument in a number of ways. First, Kirk
states in his motion that “[a]lthough the trial court’s re-sentencing of Kirk on lesser
charges did not constitute a new prosecution, the court still lacked the jurisdiction to
find Kirk guilty of the lesser charges beyond the five years after the prosecution
against Kirk had ended and was no longer ‘pending in this State.’”

18. Second, Kirk acknowledges that he “attempted” to present this claim to the
Delaware Supreme Court in 2005 through his counsel, but contends that counsel
failed to present the specifics of his claim. This failure on the part of counsel led

Kirk to request that counsel withdraw. Counsel so obliged and the Supreme Court

granted the request. Kirk contends that the Supreme Court then erred when it

 

211] Del. C. §205(h)(3) (emphasis added).
considered Kirk’s claim based on counsel’s brief (as opposed to Kirk’s later filed
brief), citing an “assumption” that Kirk never proffered before the Supreme Court.
Kirk claims that this fact, in effect, rendered Kirk’s claim as presented in this sixth
Rule 61 motion, undecided by the Supreme Court.

19. With respect to his second claim, Kirk again asserts that the trial court “lacked
jurisdiction” in arguing that the three indictments for felony murder were
“defective.” Kirk’s basis for the indictments being “defective” seem to be premised
on the notion that the initial felony murder indictments would not have been brought
against him if the Williams decision had been rendered prior to 1997 when he
committed his crimes. Kirk argues that “the retroactive application of Williams did
not go far enough” and asserts that the felony murder indictments “changed the
whole landscape of this case.” Kirk claims that had the death penalty not been
looming, he would not have waived his right to a jury trial and would likely have
been offered a plea deal that would have required him to serve substantially less jail
time then he ultimately received.

LEGAL STANDARD AND ANALYSIS
20. Before considering the merits of the claims, the Court must first determine

whether there are any procedural bars to the motion.”” This is Defendant’s sixth

 

22 Younger v. State, 580 A.2d 552, 554 (Del. 1990).
motion for postconviction relief and it is procedurally barred for a number of
reasons.

21. First, Kirk’s motion is untimely under Rule 61(i)(1) as it was not brought
within one year of the Supreme Court’s mandate affirming his convictions for
Manslaughter and Assault in the Second Degree, which occurred on December 23,
2005.”

22. Second, Kirk’s claims are barred under Rule 61(i)(4) which provides that
“[a]ny 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 habeas corpus proceeding, is thereafter barred.””*

23.  Kirk’s first claim was previously adjudicated by the Supreme Court in 2005
when it determined that the 5-year statute of limitations was not implicated in his re-
sentencing. Kirk seeks to avoid this bar to relief by relying on Rule 61(i)(5), which
states that such a bar “shall not apply . . . to a claim that the court lacked
jurisdiction.”*° Kirk’s claim--that the Superior Court lacked the jurisdiction to
convict and sentence him on the lesser charges of Manslaughter and Assault in the

Second Degree--is precisely the claim previously adjudicated by the Delaware

Supreme Court. Kirk made the exact same argument to the Delaware Supreme Court

 

3 Super.Ct.Crim.R. 61(i)(1).
4 Super.Ct.Crim.R. 61(i)(4).
25 Super.Ct.Crim.R. 61(i)(5).

10
in 2005 and the Supreme Court found no merit to the appeal. Accordingly, Kirk’s
first claim is procedurally barred under Rule 61(i)(4).

24. Kirk’s second claim that the trial court lacked jurisdiction to try him because
the indictment was “defective” also lacks merit. The indictments against Kirk
brought in 1997 for felony murder were brought in accordance with the State’s
understanding of Delaware’s felony murder statute at that time. The fact that the
interpretation of a certain phrase in the felony murder statute was redefined in 2003
by virtue of the Williams decision does not render the 1997 indictments “defective”
nor does it affect the Court’s jurisdiction. Tellingly, Kirk does not offer any
authority to support his assertion. As with his first claim, Kirk’s second claim is
merely a rephrasing of the claim previously adjudicated by the Superior Court to
include the notion that “the court lacked jurisdiction.” In essence, Kirk’s second
claim is tantamount to an appeal of the Superior Court’s determination to re-sentence
him in 2004 as opposed to granting his requested relief of entering judgments of
acquittal or granting him a new trial. Accordingly, Kirk’s second claim is also
procedurally barred under Rule 61(i)(4).

25. Moreover, Rule 61(i)(2) addresses successive motions and provides that
second or subsequent motions are not permitted under Rule 61 unless that second or

subsequent motion satisfies the pleading requirements of Rule 61(d).”°

 

© Super.Ct.Crim.R. 61(i)(2).

11
26. Rule 61(d) mandates that in second or subsequent postconviction motions, the
motion shall be summarily dismissed unless the defendant establishes: 1) that new
evidence exists that creates a strong inference that the defendant is actually innocent
of the charges for which he was convicted, or 2) the existence of a new rule of
constitutional law made retroactive to cases on collateral review rendered his
convictions invalid.*’ If it plainly appears from the motion for postconviction relief
that the movant is not entitled to relief, the Court may enter an order for its summary
dismissal and cause the movant to be notified.”*
27. Neither of Kirk’s claims meet the pleading requirements to overcome the
summary dismissal. Kirk does not contend that there is new evidence that creates a
strong inference of his actual innocence nor does he assert the existence of a new
rule of constitutional law made retroactive to his case.

For all of the foregoing reasons, Kirk’s Motion for Postconviction Relief
should be SUMMARILY DISMISSED.

IT ISSO RECOMMENDED.

Coitnissioner Janine M. Salomone

cc: Prothonotary

 

27 Super.Ct.Crim.R. 61(d)(2) & (5).
8 Super.Ct.Crim.R. 61(d)(5).

12
