IN THE SUPREME COURT OF THE STATE OF DELAWARE

AUGUSTUS H. EVANS, §
§
Defendant Below, . § No. 634, 2014
Appellant, §
§
V. § Court Below—Superior Court
§ of the State of Delaware,
STATE OF DELAWARE, - § in and for Sussex
§ Cr. ID No. 0609011528A
Plaintiff Below, §
Appellee. §

Submitted: December 22, 2014
Decided: January 14, 2015

Before STRINE, Chief Justice, HOLLAND, and VALIHURA, Justices.
QR—MLB
This 14th day of January 2015, upon consideration of the appellant August
H. Evans’ opening brief, the appellee’s motion to afﬁrm,1 and the record below, it
appears to the Court that:
(1) The appellant, Augustus 1H. Evans, ﬁled this appeal from the Superior
Court’s October 31, 2014 order summarily dismissing his fourth motion for

postconviction relief. The State of Delaware has moved to afﬁrm the Superior

1 Evans’ request for leave to respond to the motion to afﬁrm is denied. Under Supreme Court
Rule 25(a), no response to a motion to afﬁrm is permitted unless requested by the Court. The
Court did not request a response to the motion to afﬁrm and ﬁnds no good cause to permit a
response in this case.

Court’s judgment on the ground thatit is manifest on the face of Evans’ opening
brief that the appeal is without merit.2 We agree and afﬁrm.

(2) The record reﬂects that, in July 2007, a Superior Court jury found
Evans guilty of two counts of Possession of a Firearm During the Commission of a
Felony, Assault in the Second Degree, Aggravated Menacing, and Resisting
Arrest. On direct appeal, we afﬁrmed Evans’ convictions and sentence.3 We also
afﬁrmed the Superior Court’s denial of Evans’ ﬁrst, second, and third motions for
postconviction relief.4

(3) On October 28, 2014, Evans ﬁled his fourth motion for postconviction
relief. Evans claimed that the Superior Court erred in denying his request for a
jury instruction on Menacing as a lesser included offense of Aggravated Menacing,
the indictment did not cure pre-indictment errors, he was entitled to a Franks5
hearing, and he was the victim of an illegal seizure. The Superior Court summarily

dismissed the motion in an order dated October 31, 2014. This appeal followed.

2 Supr. Ct. R. 25(a).
3 Evans v. State, 2009 WL 367728 (Del. Feb. 13, 2009).

4 Evans v. State, 2014 WL 4104785 (Del. Aug. 19, 2014); Evans v. State, 2013 WL 5614265
(Del. Oct. 10, 2013); Evans v. State, 2009 WL 3656085 (Del. Nov 4, 2009).

5 Franks v. Delaware, 438 US. 154 (1978).

(4) We review the Superior Court’s denial of postconviction relief for
abuse of discretion and questions of law de novo.6 The procedural requirements of
Superior Court Criminal Rule 61 (“Rule 61”) must be considered before any
substantive issues are addressed.7 In his opening brief, Evans only presents
arguments in support of his contention that he was entitled to a jury instruction on
Menacing as a lesser included offense of Aggravated Menacing. Evans does not
argue the merits of the other claims he raised in the Superior Court and therefore
those claims are waived.8

(5) To overcome the procedural bars of Rule 61(1), Evans claims that the
denial of his request for a jury instruction on a lesser included offense constitutes a
miscarriage of justice under Rule 61(i)(5). Evans overlooks recent amendments to

Rule 61. Effective June 4, 2014, Rule 61(d) provided:

(2) Second or subsequent postconviction motions. A second or
subsequent motion under this rule shall be summarily dismissed,
unless the movant was convicted after a trial and the motion either:

(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

6 Dawson v. State, 673 A.2d 1186, 1190 (Del. 1996).
7 Younger v. State, 580 A.2d 552, 554 (Del. 1990).

8 Del. Supr. Ct. R. 14(b)(vi)(A)(3); Murphy v. State, 632 A.2d 1150, 1152 (Del. 1993).

States Supreme Court or the Delaware Supreme Court, applies to the
movant's case and renders the conviction or death sentence invalid.9

This was Evans’ fourth postconviction motion and he failed to plead with
particularity a claim under either Rule 61(d)(2)(i) or Rule 61(d)(2)(ii). Thus, the
Superior Court did not err in summarily dismissing Evans’ fourth motion for
postconviction relief.

(6) Finally, we note that Evans disregarded this Court’s warning in its
August 19, 2014 order afﬁrming the Superior Court’s denial of his third motion for
postconviction relief. As stated in the August 19, 2014 order:

We have now concluded for a third time that the Superior Court has

properly found that Evans' claims do not present grounds for relief

from his judgment of convictions by the court. Each time we have

invested considerable time to detail our reasons. In the future, if

Evans ﬁles additional petitions, we do not intend to continue to invest

scarce judicial resources in addressing Evans' repetitive claims. We

also encourage Evans to be mindful of subsection 0) of Rule 61 .10
Despite this warning, Evans ﬁled another repetitive motion for postconviction
relief. If Evans continues to ﬁle appeals from the denial of repetitive and meritless

claims regarding his 1997 convictions, he risks being enjoined from ﬁling such

appeals in this Court without ﬁrst seeking leave of the Court.11

9 Super. Ct. R. 61(d)(2) (2014).
‘0 Evans v. State, 2014 WL 4104785, at *2 (Del. Aug. 19, 2014).

“ E. g., Biggins v. State, 2011 WL 2731214, at *1 (Del. July 11, 2011); Epperson v. State, 2006
WL 1547975, at *1 (Del. June 5, 2006).

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

BY THE COURT:

. @ﬁizw

Justice

