               IN THE SUPREME COURT OF THE STATE OF DELAWARE

RICHARD DEAN PHIPPS,                     §
                                         §
          Defendant Below,               §   No. 679, 2014
          Appellant,                     §
                                         §
          v.                             §   Court Below: Superior Court
                                         §   of the State of Delaware,
STATE OF DELAWARE,                       §   in and for Sussex County
                                         §   Cr. ID No. 9406006950
          Plaintiff Below,               §
          Appellee.                      §

                             Submitted: March 11, 2015
                             Decided: April 7, 2015

Before STRINE, Chief Justice; HOLLAND, and VAUGHN, Justices

                                     ORDER

          This 7th day of April 2015, upon consideration of the appellant’s opening

brief, the appellee’s motion to affirm, and the record below, it appears to the Court

that:

          (1)    The appellant, Richard Dean Phipps, filed this appeal from the

Superior Court’s denial of his second motion for postconviction relief under

Superior Court Criminal Rule 61 (“Rule 61”). The State of Delaware has filed a

motion to affirm the judgment below on the ground that it is manifest on the face

of Phipps’ opening brief that his appeal is without merit.1 We agree and affirm.


1
    Supr. Ct. R. 25(a).
         (2)    In January 1995, a Superior Court jury found Phipps guilty of

Unlawful Sexual Intercourse in the First Degree and Endangering the Welfare of a

Child after hearing testimony that Phipps forced his nine-year old son to perform

fellatio on him. Phipps was sentenced to forty years of Level V incarceration,

suspended after thirty years for decreasing levels of supervision. On direct appeal,

this Court affirmed the Superior Court’s judgment.2

         (3)    In February 1999, Phipps filed his first motion for postconviction

relief under Rule 61. Phipps identified twelve grounds for postconviction relief,

including error by the Superior Court, ineffective assistance of counsel, police

misconduct, and prosecutorial misconduct. To support his claims that his son was

coerced, suggestible, and unreliable, Phipps amended his postconviction motion to

include a school psychologist’s 1993 report on his son reflecting that his son had

learning disabilities and low average overall cognitive ability. After receiving the

affidavit of Phipps’ former counsel, the Superior Court denied Phipps’ motion for

postconviction relief.

         (4)    In November 2014, Phipps filed his second motion for postconviction

relief. Phipps also filed a motion for appointment of counsel and a motion for an

evidentiary hearing. In his second motion for postconviction relief, Phipps raised

or restated many of the claims contained in his first motion for postconviction

2
    Phipps v. State, 1996 WL 145739 (Del. Feb. 16, 1996).

                                                2
relief. Phipps also asserted actual innocence based on his statements to police and

his counsel, the 1993 psychological report on his son, and an April 18, 1994 police

report provided to his counsel at the beginning of trial.        The Superior Court

concluded that Phipps’ claims were procedurally barred under Rule 61 and denied

the motion for postconviction relief.

         (5)     On appeal, Phipps argues: (i) his claims are not procedurally barred

under Rule 61 because he pled a colorable claim of a miscarriage of justice based

on newly discovered evidence of his actual innocence; (ii) his counsel was

ineffective; (iii) the Superior Court erred in not holding a hearing under 11 Del. C.

§ 3507 and 11 Del. C. § 3508 on the reliability and voluntariness of his son’s

statements; (iv) the prosecution violated Brady v. Maryland3 by failing to turn over

a police report until the beginning of trial; and (v) the Superior Court erred in

denying Phipps’ request for preparation of transcripts in this appeal.

         (6)     We review the Superior Court’s denial of postconviction relief for

abuse of discretion and questions of law de novo.4 The procedural requirements of

Rule 61 must be considered before any substantive issues are addressed.5 Rule

61(d)(2) provides:

3
    373 U.S. 83 (1963).
4
    Dawson v. State, 673 A.2d 1186, 1190 (Del. 1996).
5
    Younger v. State, 580 A.2d 552, 554 (Del. 1990).

                                                 3
          (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
          States Supreme Court or the Delaware Supreme Court, applies to the
          movant’s case and renders the conviction or death sentence invalid.6

Unless Phipps satisfied Rule 61(d)(2)(i) or 61(d)(2)(ii), his second motion for

postconviction relief was subject to summary dismissal.

          (7)    Phipps has not pled a claim that satisfies Rule 61(d)(2)(i) or Rule

61(d)(2)(ii). The new evidence Phipps relies upon—the 1993 psychological report

on his son and an April 18, 1994 police report provided to his counsel at the

beginning of trial—is not new and does not create a strong inference of Phipps’

actual innocence. Phipps included the 1993 psychological report in the motion to

amend his first motion for postconviction relief and stated in the motion that the

report was available before trial. The April 18, 1994 police report was provided to

Phipps’ counsel at trial. Phipps complains that he did not see the report until

weeks after trial, but that still means he had the report in 1995.

          (8)    As to the content of these reports, the learning disabilities and low

average overall cognitive ability of Phipps’ son discussed in the 1993
6
    Super. Ct. R. 61(d)(2) (2014).

                                             4
psychological report do not create a strong inference of Phipps’ actual innocence.

Based on references in the April 18, 1994 crime report to Phipps’ son being with

his friends before Phipps called him back to the bedroom and forced him to

perform fellatio, Phipps claims these children “could have possibly testified

accused did not call noone [sic] to the bedroom.”7 Phipps also claims that the

timeline of events set forth in the report (his son initially told his aunt that he saw

his father having sex with other women after a daycare reported the son was

engaging in sexually inappropriate behavior and then later stated that his father

forced him to perform fellatio) supports his theory that his son lied in order to

avoid angering his aunt. This speculation does not create a strong inference of

Phipps’ actual innocence. We therefore conclude that the Superior Court did not

err in denying Phipps’ second motion for postconviction relief.

         (9)     We also conclude that the Superior Court did not err in denying

Phipps’ request for transcripts at State expense. Absent a showing of good cause,

it was within the Superior Court’s discretion to deny Phipps’ request for transcripts

at State expense.8 Given that resolution of this appeal depended on the record

before the Superior Court on Phipps’ second motion for postconviction relief, the


7
    Appellant’s Opening Brief at 7.
8
 Miller v. State, 2008 WL 623236, at *2 (Del. Mar. 7, 2008) (citing United States v. MacCollom,
426 U.S. 317, 325-26 (1976)).

                                              5
Superior Court did not err in denying Phipps’ request for transcripts at State

expense after his second motion for postconviction relief was denied.

      NOW, THEREFORE, IT IS ORDERED that motion to affirm is GRANTED

and the judgment of the Superior Court is AFFIRMED.


                                             BY THE COURT:
                                             /s/ Leo E. Strine, Jr.
                                             Chief Justice




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