IN THE SUPREME COURT OF THE STATE OF DELAWARE

LEON POWELL, §
§ No. 690, 2014
Defendant Below, §
Appellant, § Court Below—Superior Court
§ of the State of Delaware in and
v. § for New Castle County
§
STATE OF DELAWARE, § Cr. ID No. 82007195DI
§
Plaintiff Below, §
Appellee. §

Submitted: April 7, 2015
Decided: June 17, 2015

Before STRJNE, Chief Justice, HOLLAND and VALIHURA, Justices.
O R D E R

This 17th day of June 2015, upon consideration of the appellant’s
opening brief and the appellee’s motion to afﬁrm, it appears to the Court
that:

(l) The appellant, Leon Powell, ﬁled this appeal from the Superior
Court’s March 16, 2015 order denying his motion for postconviction relief
under Superior Court Criminal Rule 61.1 The State of Delaware has moved
to afﬁrm the judgment of the Superior Court on the ground that it is manifest
on the face of Powell’s opening brief that the appeal is without merit. We

agree and afﬁrm.

1 State v. Powell, 2015 WL 1242897 (Del. Mar. 16, 2015).

(2) In 1983, Powell was tried and convicted of Intentional Murder
in the First Degree and was sentenced to life imprisonment. On September
27, 1983, this Court afﬁrmed the conviction and sentence on direct appeal.2

(3) On October 7, 2014, thirty years after his conviction was
affirmed on direct appeal, Powell ﬁled a motion for postconviction relief
under Superior Court Criminal Rule 61. By memorandum opinion dated
November 24, 2014, the Superior Court denied the motion. On appeal, this
Court remanded the matter to the Superior Court for consideration of
Powell’s motion by a different judge who had not represented the State on
Powell’s direct appeal. By order dated March 16, 2015, a different Superior
Court judge denied Powell’s motion.3 It is ﬁ'om this order that Powell has
appealed.

(4) On appeal, Powell has expressly abandoned the arguments he

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raised in his motion for postconviction relief, with one exception. Powell

contends that “there is no such criminal offense as non-capital ﬁrst degree

murder,” and that his conviction for ﬁrst degree murder and sentence of life

2 Powell v. State, 474 A.2d 141 (Del. 1983) (table).
3 State v. Powell, 2015 WL 1242897 (Del. Mar. 16, 2015).
4 Somerville v. State, 703 A.2d 629, 631 (Del. 1997).

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imprisonment were illegal because his jury was not “death qualiﬁed” in
accordance with 11 Del. C. (3‘ 4209.5

(5) Before considering the merits of any claim, the Superior Court
is required to consider whether a motion for postconviction relief is
procedurally barred.6 In this case, the Superior Court determined that
Powell’s motion was procedurally barred as untimely under Rule 61(i)(1).
Moreover, assuming arguendo that the motion was not procedurally barred,
the Superior Court determined that Powell’s claims failed on the merits. The
court found that “at all times, Powell was properly charged with, tried for
and convicted of non-capital Murder First Degree, which carries a sentence
of life imprisonment without the possibility of probation or parole.“

(6) We review the Superior Court’s denial of postconviction relief
for abuse of discretion and review question of law de novo.8 In this case,
having carefully considered the parties’ positions on appeal and the trial

record before the Superior Court, the Court concludes that the Superior

Court did not abuse its discretion when it denied Powell’s motion for

5 See 11 Del. C. § 4209 (governing punishment, procedure for determining punishment,
review of punishment and method of punishment for ﬁrst-degree murder).

6 Younger v. State, 580 A.2d 552, 554 (Del. 1990).
7 State v. Powell, 2015 WL 1242897, at *3 n.19 (Del. Mar. 16, 2015).
3 Dawson v. State, 673 A.2d 1186, 1190 (Del. 1996).

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postconviction relief on the basis that the motion was untimely ﬁled, and
that Powell could not avoid the application of Rule 61(i)(1).

(7) It is manifest on the face of the Opening brief that this appeal is
without merit. The issues presented on appeal are controlled by settled
Delaware law, and to the extent that judicial discretion is implicated, there
was no abuse of discretion.

NOW, THEREFORE, IT IS ORDERED that the State’s motion to
afﬁrm is GRANTED. The judgment of the Superior Court is AFFIRMED.

BY THE COURT:

Justice 6 i

