IN THE SUPREl\/[E COURT OF THE STATE OF DELAWARE

CURTIS L. DEMBY, §
§
Defendant Belovv- § No. 366, 2014
Appellant, §
§
v. § Court Below-Superior Court
§ of the State of Delaware,
STATE OF DELAWARE, § in and for New Castle County
§ Cr. ID No. 9412011308
Plaintiff Below- §
Appellee. §

Submitted: August 8, 2014
Decided: September 29, 2014

Before HOLLAND, RIDGELY, and VALIHURA, Justices.
0 R D E R

This 29th day of September 2014, upon consideration of the appellant’s
opening brief, the appellee’s motion to affirm, and the record below, it appears to
the Court that:

(1) The appellant, Curtis L. Demby, filed this appeal from the Superior
Court’s denial of his third motion for postconviction relief, his motion for
transcripts, and his motion for appointment of counsel. The State of DelaWare has

filed a motion to affirm the judgment below on the ground that it is manifest on the

face of Demby’s opening brief that his appeal is without merit.l We agree and
affirrn.

(2) The record reflects that, in l996, a Superior Court jury found Demby
guilty of Murder in the First Degree and Possession of a Firearm During the
Commission of a Felony ("PFDCF"). On appeal, this Court reversed the
convictions and remanded the case for a new trial.z After a new trial in 1998,
Demby was again convicted of Murder in the First Degree and PFDCF. Demby
was sentenced to life imprisonment without the possibility of probation or parole
on the Murder in the First Degree conviction and twenty years of Level V
incarceration on the PFDCF conviction. This Court subsequently affirmed the
judgments.$

(3) Beginning in 2000, Demby filed multiple requests for materials
relating to his case, including the trial transcripts. ln a letter dated May 30, 2000,
Demby’s former counsel informed Demby and the Superior Court that Demby’s
mother could pick up the trial transcripts at his office. In a letter dated December

9, 2002, Demby’s former counsel informed Demby and the Superior Court that

1 supr. ct R. zs(a).
2 Demby v. Sm¢e, 695 A.zd 1152 (Del. 1997).

3 Demby v. sza¢e, 744 A.zd 976 (Dei. 2000).

members of Demby’s family had previously picked up the trial transcripts from his
office and that he had not kept copies of those transcripts.

(4) On January 3l, 2003, Demby filed his first motion for postconviction
relief`. In this motion, Demby alleged ineffective assistance of counsel and
prosecutorial misconduct. Although the motion referred to an accompanying
memorandum, there was no such memorandum. Demby filed a motion for
appointment of counsel on February 27, 2003 and another motion for transcripts on
April l, 2003. After one of Demby’s former attorney filed an affidavit responding
to Demby’s allegations of ineffective assistance and Demby informed the Superior
Court that he could not provide the memorandum referred to in his postconviction
motion without various materials, the Superior Court summarily denied Demby’s
motion for postconviction relief on the grounds that his claims were entirely
conclusory. The Superior Court also denied Demby’s motion for appointment of
counsel and his motion for transcripts. Demby did not appeal these decisions.

(5) On July 28, 2006, Demby filed his second motion for postconviction
relief. In this motion, Demby claimed he was entitled to relief based on newly
discovered evidence relating to one of the jurors and the loss of his trial transcripts
during his transfer to a different facility in October 2002. Af`ter receiving
affidavits from Demby’s former counsel and the State’s response to the

postconviction motion, the Superior Court denied Demby’s second motion for

postconviction relief. The Superior Court found that Demby’s claims were time-
barred under Superior Court Criminal Rule 6l(i) ("Rule 6l") and Demby had not
pled a colorable claim of a miscarriage of justice due to a constitutional violation
under Rule 6l(i)(5). Demby did not appeal this decision.

(6) On February 20, 20l4, Demby filed another motion for transcripts,
Demby stated that he was indigent and that trial transcripts were necessary to show
unspecified Braa’y violations by the State, his trial counsel’s ineffectiveness, and
prosecutorial misconduct. Demby filed his third motion for postconviction relief
on March 18, 2014. In this motion, he claimed that his counsel was ineffective for
failing to challenge the State’s case sufficiently and failing to appeal the Superior
Court’s holding that statements he made after his arrest were admissible. Relying
on Martz'nez v. Ryan,4 Demby also filed a motion for appointment of counsel on
March 18, 2014. On June 18, 20l4, the Superior Court denied Demby’s motions.$
The Superior Court found that Demby’s conclusory allegations were time-barred
under Rule 6l(i)(l) and did not plead a colorable claim of a miscarriage of justice
under Rule 6l(i)(5). The Superior Court also concluded that Demby’s claims
would not be aided by transcripts and Demby did not have a right to counsel under

Martz'nez. This appeal followed.

4 --U.S.--, 132 S. Ct. 1309, 182 L.E.2d 272 (2012).

5 State v. Demby, 20l4 WL 3058382 (Del. Super. June 18, 2014).

4

(7) In his opening brief, Demby only presents arguments in support of his
contention that he is entitled to a free copy of his trial transcripts, Demby does not
argue the merits of the other claims he raised below and therefore those claims are
waived.6

(8) Relying on Supreme Court Rule 9(e)(i), which requires the
preparation of trial transcripts in all criminal cases where defendants are found
guilty of Class A felonies, Demby argues that he has a right to transcripts at State
expense and that he should not be required to identify specific legal grounds for
why he needs copies of the transcripts at State expense. This reliance is misplaced.
lt is undisputed that transcripts of Demby’s trials were prepared and that Demby’s
counsel had those transcripts for the appeals of Demby’s cases. Although indigent
defendants have a right to transcripts at State expense on appeal, they do not have
an absolute right to transcripts at State expense on collateral attacks.7 Absent a
showing of good cause, it was within the Superior Court’s discretion to deny
Demby’s request for transcripts at State expenses Given the conclusory and
untimely nature of Demby’s claims, the Superior Court did not abuse its discretion

in denying Demby’s motion for transcripts.

6 1)@1. supr. ct R. 14(6)(\11)(1>.)(3); Murphy v. s¢are, 632 A.zd 1150, 1152 (Del. 1993).

7 Miller v. State, 2008 WL 623236, at *2 (Del. Mar. 7, 2008) (citing Unz`ted States v. MacCollom,
426 U.S. 3l7, 325-26 (1976)).

8 1a

NOW, THEREFORE, IT IS ORDERED that motion to affirm is GRANTED
and the judgment of the Superior Court is AFFIRMED.

BY THE COURT:

/s/ Randv J. Holland
Justice

