       IN THE SUPERIOR COURT OF THE STATE OF DELAWARE

                  IN AND FOR NEW CASTLE COUNTY


STATE OF DELAWARE                    )
                                     )
                                     )
            v.                       )      I.D.   1107020432
                                     )
                                     )
KEVIN M. TOWNSEND,                   )
                                     )
            Defendant.               )

                                 ORDER


      1. In 2012 Defendant pled guilty to Robbery in the First Degree,

Possession of a Firearm During the Commission of a Felony and

Conspiracy in the Second Degree.         He was sentenced to twenty-five

years, suspended after five years for the robbery conviction and five years

for the weapons conviction. He also was sentenced to decreasing levels of

probation for his robbery conviction and probation for his conspiracy

conviction. His sentence also mandated he undergo certain specified

drug treatment programs. In sum, Defendant was sentenced to ten years

of non-suspended Level 5 time.

      2.   In March 2014 Defendant filed the instant Rule 61 motion

seeking post-conviction relief. In his pro se motion he contended that he

was misled by his attorney and the prosecutor into believing the court

would sentence him to no more than eight years of non-suspended Level

5 time. Another Judge of this court appointed counsel for Defendant.
After reviewing the record, appointed counsel moved to withdraw because

he could find no arguable issues to present in a Rule 61 motion.

          3.      The gist of Defendant’s motion is that “my attorney and the

prosecution agreed to a certain amount of time and I got more.” It is

apparent, therefore, that the defendant is seeking to withdraw his guilty

plea. Where, as here, the defendant has been sentenced, any motion to

withdraw a guilty plea must be brought under Criminal Rule 61.1

Accordingly the court must first decide whether Defendant’s motion is

procedurally barred. “It is well-settled that the Superior Court must

address the procedural requirements of Rule 61 before considering the

merits of a postconviction motion.” 2

          4. Rule 61 provides that a “motion for postconviction relief may

not be filed more than one year after the judgment of conviction is final.” 3

In the instant case Defendant’s conviction became final in 2012, and he

did not file this motion until 2014. It is therefore procedurally barred.

The exceptions to the procedural bars in Criminal Rule 61 provide no

help to Defendant. The only exception which is even arguably applicable

here is Rule 61(i)(5) which provides that the “bars to relief in paragraphs

(1), (2), (3), and (4) of this subdivision shall not apply. . .to a claim that


1
   Superior Court Criminal Rule 32(d)(“If a motion for withdrawal of a plea of guilty or nolo contendere is
made before imposition or suspension of sentence or disposition without entry of a judgment of conviction,
the court may permit withdrawal of the plea upon a showing by the defendant of any fair and just reason.
At any later time, a plea may be set aside only by motion under Rule 61.”)
2
    Evans v. State, 2014 WL 4104785 (Del.)
3
    Superior Court Criminal Rule 61(i)(4).


                                                     2
satisfies the pleading requirements of subparagraphs (2)(i) or (2)(ii) of

subdivision (d) of this rule.”   Defendant’s motion does not satisfy that

requirement. Rule 61(d)(2) provides that a motion for postconviction relief

shall not be dismissed if either the defendant

            (i) pleads 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) pleads 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.

Here Defendant has failed to plead any new evidence suggesting he was

innocent, much less new evidence sufficient to create a strong inference

he is actually innocent.   Further he has not alleged any new rule of

constitutional law which is applicable to his case.     Consequently his

motion will be summarily dismissed.

      5.   The court notes in passing that the underlying premise of

Defendant’s motion—that he was mislead into believing he would receive

the recommended sentence—is untrue.          Defendant, who was sworn

immediately before the plea colloquy, acknowledged he was aware he

could receive more than the recommended eight years at Level 5:

            THE COURT: Now, did Mr. O’Connell explain to
            you that if I accept your plea, the Court must
            sentence you to a minimum of six years in jail?

            DEFENDANT: Yes, sir.

                                     3
           THE COURT: And did he explain to you that the
           Court may send you to jail for up to 52 years?

           DEFENDANT: Yes.

           THE COURT: Did he explain to you that the
           Court    is   not obligated  to   follow  the
           recommendation either of your attorney or the
           State’s attorney?

           DEFENDANT: Yes.

           THE COURT: Did anyone promise you what
           sentence the Court will impose, if I accept your
           plea?

           DEFENDANT: No sir.

           THE COURT:          Has anyone promised         you
           anything at all in exchange for your plea?

           DEFENDANT: No.


     WHEREFORE, the motion of appointed counsel to withdraw is

GRANTED      and   Defendant’s   Motion   for    Postconviction   Relief   is

DISMISSED.




Dated: February 5, 2015                         John A. Parkins, Jr.
                                                Superior Court Judge




oc: Prothonotary
cc: Kevin M. Townsend, SBI 514718, HRYCI, Wilmington, Delaware
    Joseph S. Grubb, Esquire, Department of Justice, Wilmington,
    Delaware
    Christopher D. Tease, Esquire, Wilmington, Delaware



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