       IN THE SUPERIOR COURT OF THE STATE OF DELAWARE

                   IN AND FOR NEW CASTLE COUNTY


STATE OF DELAWARE                    )
                                     )
            v.                       )     I.D. No. 0704013046
                                     )
DAVON JOHNSON                        )
                                     )
            Defendant.               )


                          Submitted: October 9, 2014
                         Decided: November 20, 2014

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

                                    ORDER




Sean P. Lugg, Esquire, and Danielle J. Brennan, Esquire, Deputies Attorney
General, Department of Justice, 820 N. French St., Wilmington, Delaware,
Attorneys for the State.

Davon Johnson, Smyrna, Delaware, pro se.

WHARTON, J.
      This 20th day of November, 2014, upon consideration of Defendant’s second
Motion for Postconviction Relief and the record in this matter, it appears to the
Court that:

      1.     Defendant Davon Johnson pled guilty on May 23, 2008 to one count
             each of Manslaughter, Attempted Robbery First Degree and
             Conspiracy Second Degree.

      2.     On December 19, 2008, Defendant was sentenced on the charge of
             Manslaughter to 25 years at Level 5, suspended after 20 years,
             followed by decreasing levels of probation; on the charge of
             Attempted Robbery First Degree to 15 years at Level 5, suspended
             after five years for probation; and on the charge of Conspiracy Second
             Degree to three years at level 5, suspended for probation.

      3.     Defendant filed a Motion for Reduction of Sentence, arguing that his
             sentence should be reduced because his two co-defendants, who
             participated in the same criminal conduct, received significantly
             shorter sentences. 1 The trial court denied that motion.2

      4.     On appeal, Defendant unsuccessfully argued that the trial court abused
             its discretion by basing its sentence, in part, on a presentence report
             containing unreliable information and that his sentence was too severe
             compared to his co-defendants’ sentences. 3

      5.     On April 25, 2011, Defendant filed his first motion for post-
             conviction relief, alleging ineffective assistance of counsel.
             Defendant contended that counsel induced him to plead guilty by
             misrepresenting to him that his sentence would be only 10 years.
             Defendant also contended that the sentencing judge sentenced him
             with a “closed mind.” 4 That motion was denied.5 The Supreme Court
             affirmed. 6



1
  D.I. 25.
2
  D.I. 27.
3
  Johnson v. State, 2010 WL 2163922 (Del. May 10, 2010); 994 A.2d 744 (Del. 2010) (TABLE).
4
  D.I. 41.
5
  D.I. 53.
6
  Johnson v. State, 2011 WL 5331670 (Del. Nov. 4, 2011); 31 A.3d 76 (Del 2011) (TABLE).
                                            2
       6.      Defendant filed this motion, his second motion for postconviction
               relief, on October 9, 2014, asserting the following grounds for relief:
               1) the trial judge was acquainted with the family of the deceased; 2)
               the trial judge never disclosed that he was acquainted with the family
               of the deceased; and 3) trial counsel was ineffective in failing to
               investigate that relationship after having been made aware it. 7

       7.      Defendant’s Motion for Postconviction Relief is governed by the
               recently amended Superior Court Rule 61, which took effect on June 4,
               2014.

       8.     Rule 61(d)(2) provides for preliminary consideration of second or
              subsequent postconviction motions. A second or subsequent motion will
              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 States
                           Supreme Court or the Delaware Supreme Court,
                           applies to the movant’s case and renders the
                           conviction…invalid. 8



7
  D.I. 57. Defendant alleges that he became aware of the alleged relationship when inmate
Robert Saunders advised a family member of Defendant who in turn advised Defendant. Robert
Saunders is presumably the same Robert Saunders who was convicted of Murder in the First
Degree and other related offenses in 1976 and whose appeal of the denial of his own
postconviction relief motion (his ninth) was found to be “legally frivolous” and “an abuse of the
judicial process.” Saunders v. State, 2014 WL 5460433 (Del. Oct. 27, 2014). Defendant does not
explain how Saunders, who has been incarcerated since at least 1976, became privy to the
information he conveyed to Defendant’s family member. If Saunders purports to have learned
of this alleged association between the trial judge and the victim’s family while incarcerated, at
least one more layer of hearsay necessarily must be added between anyone with personal
knowledge of the allegation and Defendant. If Saunders claims personal knowledge of any facts
supporting the allegation, such knowledge would appear to have been at least 32 years old at the
time Defendant was sentenced.
8
  Super. Ct. Crim. R. 61(d)(2)(i) and (ii).
                                                3
       9.      Under Superior Court Rule 61(i) a motion for postconviction relief is
               potentially subject to the procedural bars of time limitations, successive
               motions, procedural defaults and former adjudications. 9 Rule 61(i)(1)
               provides that a motion exceeds time limitations if it is filed more than a
               year after the conviction becomes final or if the motion asserts a newly
               recognized, retroactively applied right more than one year after it was
               first recognized. 10 Rule 61(i)(2) prohibits second or subsequent
               motions made under this Rule unless the second or subsequent motion
               satisfies the pleading requirements of Rules 61(d)(2)(i) or (ii).11 Rule
               61(i)(3) bars consideration of any ground for relief “not asserted in
               proceedings leading to the judgment of conviction,” unless the movant
               can show “cause for relief from the procedural default” and “prejudice
               from violation of the movant’s rights.” 12           Rule 61(i)(4) bars
               consideration of any ground for relief formerly adjudicated in the case,
               including “proceedings leading to the judgment of conviction, in an
               appeal, in a postconviction proceeding, or in a federal habeas corpus
               hearing.”13

       10.     Before addressing the merits of Defendant’s second Motion for Post-
               conviction Relief, the Court must first apply the procedural bars of
               Superior Court Criminal Rule 61(i). 14 If a procedural bar exists, then
               the Court will not consider the merits of the postconviction claim
               unless Defendant can show that the exception found in Rule 61(i)(5)
               applies. 15

       11.     Rule 61(i)(5) provides that consideration of otherwise procedurally
               barred claims is limited to claims that satisfy the new pleading
               standards set forth in Rules 61(d)(2)(i) and (ii).16

       12.     Upon preliminary consideration, the Court finds that this motion is
               subject to summary dismissal. Defendant’s motion does not meet the
               requirements of Rule 61(d)(2). He was not convicted after a trial as

9
  Super. Ct. Crim. R. 61(i)(1)-(4).
10
    Super. Ct. Crim. R. 61(i)(1).
11
   Super. Ct. Crim. R. 61(i)(2).
12
   Super. Ct. Crim. R. 61(i)(3).
13
   Super. Ct. Crim. R. 61(i)(4)
14
    Younger v. State, 580 A.2d 552, 554 (Del. 1990).
15
    Super. Ct. Crim. R. 61(i)(5).
16
   Id.
                                                4
               required by the Rule – he pled guilty, nor has he alleged with
               particularity that: 1) new evidence exists that creates a strong inference
               that he is actually innocent; or 2) a new rule of constitutional law
               applies to his case that renders his conviction invalid.

        13. Moreover, the Court further finds that, even if the motion was not
            subject to summary dismissal, the bars of Rules 61(i)(1)-(3) would
            preclude relief. The motion is time-barred since it was filed on October
            9, 2014, more than four years after the judgment of conviction became
            final.17 As a second or subsequent motion it fails to meet the pleading
            requirements of Rules 62(d)(2)(i) and (ii).18 Finally, Defendant’s
            claims are barred by procedural default, since he did not raise these
            claims previously, either in the proceedings leading to the judgment of
            conviction, or more importantly, in his first postconviction relief
            motion.19 The failure to raise these claims in his first postconviction
            relief motion precludes Defendant from showing cause for relief from
            the procedural default, inasmuch as Defendant raised a claim of
            ineffective assistance of counsel in that motion as well. There appears
            to be no reason, nor has Defendant offer a reason, why Defendant did
            not raise the claims raised in this motion in his earlier postconviction
            relief motion.20

   Therefore, Defendant’s second Motion for Post-conviction Relief is
SUMMARILY DISMISSED.


IT IS SO ORDERED.


                                                                  ______________________
                                                                   /s/Ferris W. Wharton, J.

cc:    Sean P. Lugg, Esquire, Deputy Attorney General
       Danielle J. Brennan, Esquire, Deputy Attorney General
       Davon Johnson, SBI # 390153

17
   Super. Ct. Crim. R. 61(i)(1).
18
   Super. Ct. Crim. R. 61(i)(2).
19
   Super. Ct. Crim. R. 61(i)(3).
20
   Defendant’s claim that he requested trial counsel to investigate the alleged relationship
between the trial judge and the victim’s family establishes that he was aware of the existence of
this claim prior to filing his first postconviction relief motion, since trial counsel no longer
represented Defendant when he filed his first motion.
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      Investigative Services
oc:   Prothonotary




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