             IN THE SUPREME COURT OF THE STATE OF DELAWARE

WILLIAM GREGORY SUMMERS, §
                         §                  No. 195, 2014
    Defendant-Below,     §
    Appellant,           §
                         §
    v.                   §                  Court Below: Superior Court
                         §                  of the State of Delaware,
STATE OF DELAWARE,       §                  in and for Kent County
                         §                  Cr. ID 9704012286
    Plaintiff-Below,     §
    Appellee.            §

                             Submitted: May 8, 2014
                              Decided: July 17, 2014

Before STRINE, Chief Justice, HOLLAND, and BERGER, Justices.

                                      ORDER

          This 17th day of July 2014, upon consideration of the opening brief and the

appellee’s motion to affirm under Supreme Court Rule 25(a), it appears to the

Court that:

          (1)    The defendant-appellant, William Gregory Summers, filed this appeal

from the Superior Court’s summary denial of his sixth motion for postconviction

relief. The State of Delaware has filed a motion to affirm the judgment below on

the ground that it is manifest on the face of Summers’ opening brief that his appeal

is without merit.1 We agree and affirm.


1
    Supr. Ct. R. 25(a).
         (2)     The record reflects that Summers was found guilty of first degree

robbery, third degree assault, and misdemeanor theft on January 25, 1999.

Summers was declared a habitual criminal under 11 Del. C. § 4214(b) and

sentenced to life imprisonment. On direct appeal, this Court affirmed Summers’

sentencing as a habitual criminal, but reversed the misdemeanor theft conviction.2

Since his direct appeal, Summers has filed unsuccessful motions and petitions

seeking state postconviction, state habeas, and federal habeas relief. 3

         (3)     Summers filed his sixth postconviction motion for relief under

Superior Court Criminal Rule 61 in May 2014, arguing “[t]he trial court abused its

discretion by admitting into evidence an incriminating statement without

establishing if the defendant had knowingly and intelligently waived his right to

attorney in violation of the 5th and 6th amendment.”4                 In the accompanying

document titled “Request for Evidentiary Hearing in Show of Cause,” Summers

conceded that his claim was procedurally barred by Rule 61(i)(1), (i)(2), and (i)(3)

because it was untimely, because he failed to raise it in any of his five prior

postconviction motions, and because he failed to raise it at trial or on direct
2
    Summers v. State, 2000 WL 1508771, at *1 (Del. Sept. 15, 2000).
3
  E.g., Summers v. State, 2011 WL 3211105 (Del. July 27, 2011); Summers v. State, 2010 WL
2635090 (Del. July 1, 2010); Summers v. State, 2007 WL 221522 (Del. Jan. 29, 2007); Summers
v. State, 2004 WL 220327 (Del. Jan. 27, 2004); Summers v. State, 2003 WL 21456669 (Del. June
19, 2003); Summers v. Carroll, 2006 WL 1338770 (D. Del. 2006).
4
    Summers v. State, Cr. No. 9704012286 D.I. 135 at 3.

                                                2
appeal.5 Nonetheless, Summers argued that he had overcome these procedural

hurdles by asserting a colorable claim of a miscarriage of justice due to a

constitutional violation under Rule 61(i)(5). The Superior Court denied Summers’

postconviction motion as procedurally barred without explicitly addressing Rule

61(i)(5). This appeal followed.

         (4)     This Court reviews the Superior Court’s denial of postconviction

relief for abuse of discretion and questions of law de novo.6 The Court must

consider the procedural requirements of Rule 61 before addressing any substantive

issues.7 The miscarriage of justice exception under Rule 61(i)(5) is very narrow

and “has been applied only in limited circumstances, such as when the right relied

upon has been recognized for the first time after the direct appeal.”8 Summers

bears the burden of proving the existence of a constitutional violation under Rule

61(i)(5).9

         (5)     Summers’ sixth postconviction motion and accompanying submission

only pled that the trial judge erred by accepting a recording of an incriminating

5
    Summers v. State, Cr. No. 9704012286 D.I. 136 at 1.
6
    Dawson v. State, 673 A.2d 1186, 1190 (Del. 1996).
7
    Younger v. State, 580 A.2d 552, 554 (Del. 1990).
8
    Younger, 580 A.2d at 555.
9
    Gattis v. State, 955 A.2d 1276, 1290 (Del. 2008).

                                                  3
statement10 without conducting an inquiry into whether Summers was read his

Miranda rights or invoked his right to counsel. His cursory motion is devoid of

any facts suggesting that the recording of the statements he made during his

interrogation by the police that was introduced at his trial was in any way altered.

Nor does Summers allege that the transcription of that recording, which was

prepared at the direction of Summers’ own counsel and is consistent with the

recording, was altered.        Nor does Summers allege any facts suggesting his

statement was coerced.

       (6)    The record reflects that Summers’ trial counsel did not ultimately

pursue a motion to suppress Summers’ statement that counsel had filed at his

request and did not object to admission of the statement at trial. The reason for the

decision not to object is easy to discern.           The recording and transcription of

Summers’ interrogation by the police both indicate that Summers was specifically

informed of his right to counsel, did not invoke that right, and instead gave an

extensive statement to the police. Given this record, and the failure of Summers to

allege any facts suggesting the transcript or tape were altered or that his statement

was the product of coercion, there was no basis for the trial court to conduct an




10
  Summers admitted in this statement to displaying a gun to the victim and taking drugs from
her, but denied stealing money from her or hitting her.

                                               4
inquiry into Summers’ waiver of his Miranda rights. Summers has thus failed to

state a colorable claim of a miscarriage of justice under Rule 61(i)(5).

      NOW, THEREFORE, IT IS ORDERED that the judgment of the Superior

Court is AFFIRMED.




                                       BY THE COURT:
                                       /s/ Leo E. Strine, Jr.
                                       Chief Justice




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