IN THE SUPERIOR COURT OF THE STATE OF DELAWARE

STATE OF DELAWARE )

V. § I.D. No. 0503015173
KEVIN A. ROY, §

Defendant. §

Submitted: February 27, 2017
Decided: March 13, 2017

Upon Defendant’s Third Motion for Postconviction Relief
SUMMARILY DISMISSED.

Upon Defendant’s Motion for Appointment of Counsel
DENIED.

ORDER

Kevin A. Roy, pro se, Smyrna, DE.

Cari A. Chapman, Esquire, Deputy Attomey General, Department of Justice, 820
N. French St., Wilmingcon, Delaware, Attorney for the State.

WHARTON, J.

This 13th day of March, 2017, upon consideration of Defendant’s third
Motion for Post-conviction Relief and the record in this matter, it appears to the
Court that:

l. Defendant Kevin A. Roy (“Roy”) Was indicted by the Grand Jury on
the charges of Murder First Degree, Possession of a Firearm During the
Commission of a Felony (“PFDCF”) (tWo counts), Possession of a Deadly Weapon
by a Person Prohibited (“PDWBPP”), Attempted Delivery of Cocaine and
Conspiracy Second Degree.l On February 6, 2006, Roy pled guilty to
Manslaughter and one count of PFDCF.2 He Was sentenced to a total of 35 years
of incarceration suspended after 30 years of incarceration, followed by decreasing
levels of supervision.3 Roy’s 2008 appeal from the Court’s 2006 sentencing order
Was dismissed as untimely.4

2. Roy has filed two prior Motions for Postconviction Relief (“PCR”), both
of Which Were denied. His first, filed on April 29, 2008, raised issues related to
transferring his case to the Family Court Via a reverse amenability hearing.5 lt Was

denied on January 22, 2009.6 The denial Was affirmed on appeal on July 15 , 2009.7

 

1D.I. 2.

2 D.I. 28.

3 D.I. 29.

4See Roy v. State, 945 A.2d 1168 (Del. 2008) (TABLE).
5 D.I. 37.

6 D.I. 46.

7 D.I. 51.

Roy’s second PCR motion Was filed on May 2, 2013.8 That PCR motion raised five
grounds for relief: l) counsel misled Roy into accepting a plea deal; 2) counsel
failed to inform Roy of the lesser included offenses of first degree murder; 3)
counsel’s misapplication of the law caused Roy to accept the State’s plea offer; 4)
counsel’s representation Was deficient during the reverse amenability hearing; and
5) counsel failed to inform Roy of the status of his suppression motion during the
plea negotiation process.9 The Court denied this second PCR motion as both time
barred and procedurally barred because Roy did not raise his claims previously.10
Again, Roy appealed and again his appeal Was dismissed as uritimely.11

3. Roy filed this PCR motion, his third, on February 27, 2017.12 The
motion raises a single compound ground for relief: Roy’s due process rights, his
right not to be subjected to cruel and unusual punishment, and his fair trial rights
Were violated When he Was sentenced to 30 years imprisonment Without
consideration by the Court of his status as a youthful offender, coupled With an
ineffective trial counsel Who failed to pursue Roy’s youth as a mitigating
circumstance13

4. Before addressing the merits of a defendant’s motion for postconviction

relief, the Court must first apply the procedural bars of Superior Court Criminal

 

8 D.I. 59.

9 D.I. 61 , 67 (Defendant-Petitioner’s Amended Motion for Postconviction Relief).
10 D.I. 77 .

“ D.I. 80.

12 D.I. 90.

13Ia1

Rule 6l(i).14 If a procedural bar exists, then the Court will not consider the merits of
the postconviction claim.15

5. Under Delaware Superior Court Rules of Criminal Procedure, a motion
for post-conviction relief can be barred for time limitations, successive motions,
procedural defaults, and former adjudications A motion exceeds time limitations
if it is filed more than one year after the conviction becomes final or if it asserts a
newly recognized, retroactively applied right more than one year after it was first
recognized16 A second or subsequent motion is considered successive and
therefore barred unless the movant was convicted after a trial and “pleads with
particularity that new evidence exists that the movant is actually innocent” or
“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
invalid.”17 Grounds for relief “not asserted in the proceedings leading to the
judgment of conviction” are barred as procedurally defaulted unless the movant
can show “cause for relief’ and “prejudice from [the] violation.”18 Grounds for

relief formerly adjudicated in the case, including “proceedings leading to the

 

14 Younger v. State, 580 A.2d 552, 554 (Del. 1990).

15 Id

16 super. ci. Crim. R. 61(1)(1).

17 super. ct. Crim. R. 6i(i)(2); super. ct. Crim. R. 6i(d)(2).
18 super. Ct. crim. R. 61(1)(3).

judgment of conviction, in an appeal, in a post-conviction proceeding, or in a
federal habeas corpus hearing” are barred.19

6. Summary dismissal is appropriate if it plainly appears from the motion
for postconviction relief and the record of prior proceedings in the case that the
movant is not entitled to relief.20

7. ln applying the procedural bars of Rule 61(i), it appears that the motion
again is an untimely, successive motion for postconviction relief, asserting grounds
for relief that were not raised in Roy’s previous motions Roy acknowledges as
much.21 ln order to overcome these procedural bars Roy must satisfy the pleading
requirements of Rule 61(2)(i) or (2)(ii)22 by pleading “with particularity that new
evidence exists that creates a strong inference that the movant is actually innocent”23
or by pleading “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
...invalid.”24 Roy has opted for the latter approach, arguing that such a new rule
exists.25 Specifically, he cites a line of cases, beginning with Eddings v.

28

Oklahoma,26 running through Graham v. Florida,27 Miller v. Arizona, and

 

19 Super. Ct. Crim. R. 6l(i)(4).

20 Super. Ct. Crim. R. 6l(d)(5).

21 D.I. 90.

22 Super Ct. Crim. R. 61(i)(5).

23 Super. Ct. Crim. R. 6l(d)(2)(i).
24 Super. Ct. Crim. R. 6l(d)(2)(ii).
25 D.I. 90.

26 455 U.s. 104 (1982).

Montgomery v. L0uisiana,29 to State v. Reyes30 for the proposition that the Court
imposed an unconstitutionally hash sentence on him as a youthful offender. More
specifically, Roy argues that Miller, decided in 2012, was made retroactive by
Montgomery in 2016.

8. A fair place to start seems to be Mz'ller to see what new rule of
constitutional law was made retroactive by Montgomerjy, and if that rule actually
benefits Roy. While there is much discussion in Mller about the “hallmarl< features
of youth - ...immaturity, impetuosity and failure to appreciate risks and
consequences,”31 the new rule of constitutional law actually announced in Miller
and made retroactive by Montgomerjy is this: the Eighth Amendment forbids a
sentencing scheme that mandates life in prison without possibility of parole for

2 Since Roy did not receive a mandatory sentence of life in

juvenile offenders3
prison without possibility of parole, the new rule of constitutional law announced in
Mz'ller does not apply to him. Accordingly, Roy’s PCR motion fails to overcome the

bars of Rule 61(i)(1)-(3), since it is untimely, successive, and raises issues not

previously asserted

 

27 560 U.S. 48 (2010).

28 567 U.S. 460, 132 S. Ct. 2455 (2012).

22__U.S._, 136 S. Ct. 718 (2016).

30 2016 WL 358613 (Del. Super. Jan. 27, 2016). The Superior Court decision in State v. Reyes,
cited here by Roy, did not announce a new rule of constitutional law made retroactive to Roy’s
case and was not a Delaware Supreme Court decision.

31Miller, 567 U.S._, 132 S. Ct. 2468.

32Ia', 567 U.S. _, _, 132 S. Ct. 2469; Mom‘gomery, _ U.S. __, _, 136 S. Ct. 718, 725.

6

Therefore, since it plainly appears from Roy’s Motion for Postconviction
Relief and the record in this case that Roy is not entitled to relief, the Motion for
Postconviction Relief is SUMMARILY DISMISSED.

Roy’s Motion for Appointment of Counsel is DENIED.

IT IS SO ORDERED.

</‘

Fetfis W. Wharton, J.

 

oc: Prothonotary
cc: Investigative Services

