      IN THE SUPERIOR COURT OF THE STATE OF DELAWARE

                                              )
STATE OF DELAWARE                             )
                                              ) ID#0803024468
           v.                                 )
                                              )
DONALD K. WRIGHT,                             )
                                              )
                 Defendant                    )


                        Submitted: November 28, 2016
                         Decided: February 27, 2017

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

  On Defendant’s Motion for Appointment of Counsel. DENIED AS MOOT.

                                    ORDER
Cari Chapman, Esquire, Deputy Attorney General, Department of Justice,
Wilmington, Delaware, Attorney for the State.

Donald Wright, James T. Vaughn Correctional Institution, Smyrna, Delaware, pro
se.

COOCH, R.J.

     This 27th day of February 2017, upon consideration of Defendant’s Second
Motion for Postconviction Relief, it appears to the Court that:

     1.    The facts of this case were set forth in this Court’s earlier opinion on
           Defendant’s first Motion for Postconviction Relief as follows:

                 Defendant, Donald Wright, was convicted on December 12, 2008,
                 following a jury trial in this Court of eight counts of Rape First



                                          1
                     Degree, Rape Second Degree, Unlawful Sexual Contact First
                     Degree and Continuous Sexual Abuse of a Child.
                     These charges arose from events that took place between April
                     2006 and November 2007, during which time Defendant sexually
                     abused his minor stepdaughter.1 The victim testified at trial that
                     Wright repeatedly engaged in oral and vaginal intercourse with her
                     during this period of time.2 Defendant admitted at trial that he
                     engaged in oral sex with the victim “four times, had ejaculated on
                     her stomach, touched her breasts, rubbed his penis on the outside
                     of her vagina and placed his fingers inside her vagina.”

                     On February 12, 2009, Defendant was sentenced to fifteen years at
                     Level V on each count of Rape First Degree and Continuous
                     Sexual Abuse of a Child. Defendant was also sentenced to ten
                     years at Level V followed by five years of probation for the single
                     count of Rape Second Degree.

                     Defendant appealed his case to the Delaware Supreme Court and
                     his convictions were affirmed on August 28, 2009.1

       2.     In his first Motion for Postconviction Relief, Defendant asserted three
              grounds for postconviction relief: (1) “movant was prejudiced when
              counsel failed to file a timely objection pursuant to Superior Court
              Criminal Rule 12(b)(2) challenging the vagueness of [the] indictment.
              . . . (2) movant was prejudiced when counsel on direct appeal failed to
              challenge the vagueness of [the] indictment as to counts 1 through 8; .
              . . and (3) movant was prejudiced when counsel on direct appeal failed
              to challenge the vagueness of [the] indictment as to count 38.”2

       3.     This Court denied Defendant’s first Motion for Postconviction Relief,
              finding that Defendant had failed to show that his trial and appellate
              counsels’ representation of him fell below an objective standard of
              reasonableness as required by Strickland v. Washington. That decision
              was affirmed by the Delaware Supreme Court.3


1
  State v. Wright, 2010 WL 11470344, at *1 (Del. Super. July 22, 2010).
2
  Id.
3
   Wright v. State, 2011 WL 181470 (Del. Jan. 14, 2011) (finding no merit to Defendant’s
allegation of ineffective assistance of counsel, and holding that “[Defendant’s] indictment
conformed to the requirements of Superior Court Criminal Rule 7(c)(1) by placing him on notice
of the charges against which he was required to defend. As such, there was no substantive basis
on which to challenge the indictments.”).
                                              2
         4.      On November 16, 2016, Defendant filed his second Motion for
                 Postconviction Relief and a Motion for Appointment of Counsel. In
                 his second Motion for Postconviciton Relief, Defendant moves for
                 relief on two grounds that “[have] nothing to do with prior
                 postconviction.”4 In his first ground for relief, Defendant argues:

                        Procedural bars (1) (2) (3) or (4) are inapplicable and shall not
                        apply to jurisdictional claim because 2(i) clearly shows error
                        pleads with particularity that new evidence exist, that creates a
                        strong inference error exist and was hidden resulting in newly
                        discovered evidence[.] Indictment from grand jury based on
                        United States v. Reese 92, U.S. 214, 232 (Clifford J. dissenting[)]
                        1 Bishop supra 87 at 55 must contain an allegation of every fact
                        which is legally essential to the punishment to be inflicted. Also
                        Grand jury indictment either gives the court jurisdiction or not
                        because the grand jury indictment must be correct in order to
                        protect defendants due process to a fair trial. Procedural bars
                        (1) (2) (3) and (4) are inapplicable and shall not apply to
                        jurisdictional error Superior Court lacked jurisdiction pursuant
                        to indictment because (Clifford J. dissenting 1 Bishop supra 87 at
                        55 clearly demonstrates an indictment must include any particular
                        fact which the law makes essential to the punishment results in a
                        miscarriage of justice. The rule is necessary to prevent an
                        impermissibly large risk of an inaccurate conviction. The rule
                        alters our understand of the bedrock procedural elements essential
                        of the fairness of a proceeding. Based on the facts presented in the
                        grounds reconsideration is warranted in the interest of justice,
                        because grand jury protection must be preserved and protected.5


                 In support of this claim, Defendant sets forth the following
                 “Supporting facts:”

                        (a) A person is guilty of rape in the first degree when the person
                        intentionally engages in sexual intercourse with another person (1)
                        The sexual intercourse occurs without the victims consent and
                        during the commission of the crime or during the immediate flight
                        following the commission of the crime, or during an attempt to

4
    Def.’s Second Mot. for Postconviction Relief at 2.
5
    Id. at 3.
                                                  3
           prevent the reporting of the crime, the person causes physical
           injury or serious mental or emotional injury to the victim.

           The grand jury indictment does not have the aggravating factors
           which results in a unfair trial violating defendants grand jury
           protection due process protection, not given to defendant results in
           fundamental unfairness grand jury indictments. The errors
           injured and destroyed by insidious activity.         Court lacked
           jurisdiction pursuant to try convict or punish. Defendant supports
           his allegations of constitutional error with new reliable evidence,
           that grand jury protection must be given. This error is a legal
           nullities. Superior court lacked jurisdiction over the defendants
           indictment acted in a manner inconsistent with constitutional due
           process and in addition acted beyond the powers granted to it
           under the law U.S. v. Reese[.]

5.   In his second ground for postconviction relief, Defendant asserts the
     following:

           procedural bars (1) (2) (3) and (4) are inapplicable and
           shall not apply to Double Jeopardy violation. (2) (i) is
           needed because the Due Process violation pleads with
           particularity that new evidence exists that creates a
           strong inference. New evidence exists and was hidden
           which qualifies the claim for newly discovered evidence.
           Reconsideration is warranted in the interest The double
           clause has never required prejudice beyond the very
           exposure to a second jeopardy.

           Also procedural bars (1) (2) (3) and (4) are also
           inapplicable and shall not apply to Double jeopardy
           violation because Superior Court lacked jurisdiction to
           try by trial or convict or punish. Multiplicitous counts
           are improper because they allow multiple punishments
           for a single offense. The courts have held that counts
           charging substantive violations of Rape section pursuant
           to indictment are multiplicitous because they both
           concern the same place and same time period. U.S. v.
           Wood . . . lacked jurisdiction to try convict or punish
           based on not preserving or protecting defendants fair trial
                                    4
                        rights error results in a miscarriage of justice.
                        Multiplicitous     indictment   and convictions of
                                                          6
                        multiplicitous indictment charges.

                 In support of that argument, Defendant set forth another section of
                 “Supporting Facts:”

                        The instant that superior court permits multiplicity of an
                        indictment to enter the courtroom double jeopardy
                        violation results in fundamental unfairness. The rule
                        prohibits the Superior Court from charging a single
                        offense in several counts and is intended to prevent
                        multiple punishments for the same act.

                        For a defendant conviction under multiplicitous
                        indictment the sole remedy is to vacate the multiplicitous
                        sentence. The rule against multiplicity stems from the
                        5th Amendment of the constitution which forbids a
                        defendant twice in jeopardy for one offense. Trial
                        Counsel knew about all these substantial right violations
                        which cause him to fall below the objective standard of
                        reasonableness.      Multiplicitous indictments violates
                        double jeopardy clause because it raises danger that
                        defendant will receive more than 1 sentence for single
                        crime That if it wasn’t for counsel actions were so clearly
                        prejudicial to substantial rights of defendants that errors
                        jeopardized the very fairness of constitutional guarantee.
                        6th Amendment protection was denied creating a
                        miscarriage of justice to a fair trial, for defendant.7

                 Defendant filed a Motion for Appointment of Counsel on November
                 16, 2016.

         6.      Before considering the merits of a motion for postconviction relief,
                 this Court must first determine whether or not the motion is
                 procedurally barred under Superior Court Criminal Rule 61(i). As
                 this is Defendant's second motion for postconviction relief, Rule
6
    Id. at 4.
7
    Def.’s Second Mot. for Postconviction Relief at 2.
                                                  5
                     61(d)(2) pertaining to successive motions is the applicable one in this
                     matter. Under Rule 61(d)(2), successive motions for postconviction
                     relief are procedurally barred unless the defendant

                              (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 or
                              death sentence invalid.8

           7.        In the case at bar, Defendant has failed to satisfy either test that would
                     permit him to overcome the procedural bar. With respect to Rule
                     61(d)(2)(i), although Defendant makes a statement in his motion that
                     new evidence exists that would create a strong inference that he is
                     actually innocent of the crimes charged, his statement is merely
                     conclusory on that point. Defendant has failed to set forth what that
                     new evidence may be. Rather, it appears that the "new evidence"
                     contemplated by Defendant is a new legal argument concerning the
                     validity of his indictment. Accordingly, Defendant has failed to plead
                     with any particularity that new evidence exists that creates a strong
                     inference of actual innocence.

           8.        With respect to Rule 61(d)(2)(ii), Defendant has failed to show that a
                     new rule of constitutional law made retroactive to his case exists.
                     Rather, Defendant appears to again, as he did in his first Motion for
                     Postconviction Relief, challenge the content of his indictment. In this
                     Motion, Defendant cites the Double Jeopardy Clause and argues that
                     his charges were "multiplicitous." However, his grounds for relief are
                     again conclusory and do not set forth any argument supporting his
                     belief that a new rule of constitutional law exists that was made
                     retroactive to his case. Defendant could have argued these claims
                     either on direct appeal from his conviction or in his First Motion for
                     Postconviction Relief, but failed to do so. Accordingly, as Defendant
                     has failed to overcome the procedural bars to successive motions for


8
    Super. Ct. Crim. R. 61(d)(2)

                                                        6
            postconviction relief, Defendant's second Motion for Postconviciton
            Relief is summarily dismissed, as required by Rule 61(d)(2).




   Therefore, Defendant’s Second Motion for Postconviction Relief is
SUMMARILY DISMISSED.

      Defendant's Motion for Appointment of Counsel is DENIED AS MOOT.

IT IS SO ORDERED.

                                                    ______________________
                                                     Richard R. Cooch, R.J.
oc:   Prothonotary
cc:   Investigative Services




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