        IN THE SUPERIOR COURT OF THE STATE OF DELAWARE

STATE OF DELAWARE,                            )
                                              )
        v.                                    )
                                              )     I.D. No. 1112020007
PATRICK OWUSU,                                )
            Defendant.                        )

                         Date Submitted: August 31, 2018
                         Date Decided: September 20, 2018

                Upon Defendant’s Motion for Postconviction Relief
                            DENIED AS MOOT

                                      ORDER

        This 20th day of September, 2018, upon consideration of the Motion for

Postconviction Relief filed by Defendant, Patrick Owusu, the Court is divested of its

jurisdiction to consider the pending motion and finds as follows:

        1.    By its express terms, the Delaware Superior Court Criminal Rules

provides that relief pursuant to Rule 61 is only available to a defendant “in custody

under a sentence of this court[.]”1 The Delaware Supreme Court has explained that

a person loses standing to move for postconviction relief under Rule 61 where the

defendant is not in custody or subject to future custody for the underlying offense or

challenged sentence.2 The Superior Court has consistently applied this standard in

summarily dismissing postconviction motions.


1
    Super. Ct. Crim. R. 61(a)(1).
2
    Pumphrey v. State, 2007 WL 3087405, at *1 (Del. 2007).
      2.     Defendant’s sentence, which was imposed after a violation-of-

probation hearing was held on August 10, 2012, had a final expiration date of August

10, 2017. Defendant argues that he is entitled to relief because he is detained for

purposes of deportation as a result of his sentence in this case. Where a defendant

understands that deportation may follow as a potential result to pleading guilty to

criminal charges, this is merely a “collateral, and not a direct, consequence” of the

defendant’s sentence.3 During the initial plea colloquy, Defendant acknowledged

his understanding of the deportation risks associated with pleading guilty to a

felony.4 In addition, Defendant signed a truth-in-sentencing form acknowledging

that conviction of a criminal offense may result in deportation. Despite Defendant’s

contentions, his current detainment for purposes of deportation is entirely separate

from the sentence imposed and he is no longer in custody under a sentence of this

Court. Therefore, the Court is divested of jurisdiction and the pending Motion for

Postconviction Relief is moot.

      3.     Pursuant to Rule 61(d)(5), “[i]f it plainly appears from the motion for

postconviction relief and the record of prior proceedings in the case that the movant


3
  See State v. Ruiz, 2007 WL 4577586, at *4 (Del. Super. 2007), aff’d 956 A.2d
643 (Del. 2008). “A collateral consequence ‘is one that is not related to the length
or nature of the sentence imposed on the basis of the plea.’” Id. at *3.
4
  State v. Owusu, I.D. No. 1112020007, at 20-23 (Del. Super. June 26, 2012)
(Herlihy, J.) (TRANSCRIPT).
                                         2
is not entitled to relief, the judge may enter an order for its summary dismissal.”5

Even if Defendant’s postconviction motion qualified for review on the merits,

summary dismissal would be appropriate for the following two reasons:

        (i)    First, Defendant’s motion does not satisfy the procedural requirements

               of Rule 61(i) and is therefore time-barred. Rule 61(i)(1) requires a

               motion for postconviction relief be filed within one year after the

               judgment of conviction is final.6 Defendant was sentenced on August

               10, 2012, and did not file a direct appeal. As a result, Defendant’s

               conviction became final on September 10, 2012. Defendant filed this

               motion on August 31, 2018, almost six years after his conviction

               became final. To avoid the procedural time bar of Rule 61(i)(1),

               Defendant must satisfy the requirements of Rule 61(i)(5), which

               provides that procedural bars “shall not apply either to a claim that the

               court lacked jurisdiction or to a claim that satisfies the pleading

               requirements of subparagraphs (2)(i) or (2)(ii) of subdivision (d) of this

               rule.” 7   Defendant’s motion does not claim that the court lacked

               jurisdiction nor does it “plead with particularity that new evidence


5
    Super. Ct. Crim. R. 61(d)(5).
6
    Super. Ct. Crim. R. 61(i)(5).
7
    Id.
                                            3
             exists that creates a strong inference that the movant is actually

             innocent” or “plead with particularity a claim that a new rule of

             constitutional law, made retroactive . . . [and] appli[cable] to the

             movant’s case and renders the conviction . . . invalid.”8 Accordingly,

             Defendant’s motion does not satisfy the procedural requirements of

             Rule 61(i)(1) and, therefore, his motion is time-barred.

      (ii)   Second, Defendant’s claim of ineffective assistance of counsel fails for

             the reasons previously set forth by this Court in its Order Denying

             Patrick Owusu’s Motion for Appointment of Counsel.9


      NOW, THEREFORE, on this 20th day of September, 2018, Defendant’s

Motion for Postconviction Relief is hereby DENIED AS MOOT.

      IT IS SO ORDERED.


                                                      Andrea L. Rocanelli
                                             ______________________________________________________
                                             The Honorable Andrea L. Rocanelli




8
  Super. Ct. Crim. R. 61(d)(2)(i), (ii).
9
  State v. Owusu, I.D. No. 1112020007, at 4-5 (Del. Super. January 29, 2015)
(ORDER).
                                         4
