             IN THE SUPREME COURT OF THE STATE OF DELAWARE

    LAKISHA SHORT,                       §
                                         §
           Defendant Below,              §   No. 59, 2015
           Appellant,                    §
                                         §
           v.                            §   Court Below—Superior Court
                                         §   of the State of Delaware,
    STATE OF DELAWARE,
                                         §   in and for Kent County
           Plaintiff Below,              §   Cr. ID No. 0107017038
           Appellee.                     §
                                         §

                              Submitted: May 26, 2015
                              Decided:   July 9, 2015

Before HOLLAND, and VALIHURA, and VAUGHN, Justices.

                                    ORDER

          This 9th day of July 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, Lakisha Short, filed this appeal from the Superior

Court’s denial of Short’s 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 Short’s

opening brief that this appeal is without merit.1 We agree and affirm.


1
    Supr. Ct. R. 25(a).
      (2)     In January 2002, Short pled guilty to Burglary in the Second Degree

(“Burglary Case”). Short was sentenced to eight years of Level V incarceration,

suspended after time served for decreasing levels of supervision. Short did not

appeal the Superior Court’s judgment.

      (3)     While on probation in the Burglary Case, Short was arrested for

Robbery in the First Degree and other related offenses (“Robbery Case”). In 2004,

Short was convicted and sentenced as a habitual offender to fifty-five years of

Level V incarceration in the Robbery Case and discharged as unimproved from

probation in the Burglary Case. The Burglary Case was closed in 2011.

      (4)     In March 2013, Short filed a motion for postconviction relief under

Superior Court Criminal Rule 61 (“Rule 61”) in the Burglary Case. Short claimed

the guilty plea was unknowing and involuntary. The Superior Court concluded

that Short’s claims were procedurally barred by Rule 61(i)(1), (i)(3), and (i)(4) and

summarily dismissed the motion. Short filed a notice of appeal and then withdrew

the appeal.

      (5)     In January 2015, Short filed a second motion for postconviction relief

under Rule 61 in the Burglary Case. In this motion, Short argued that: (i) the

conviction for Burglary in the Second Degree was one of the predicate offenses for

the habitual offender sentence in the Robbery Case; (ii) Short was innocent of

Burglary in the Second Degree; (iii) the Superior Court lacked jurisdiction because



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the burglary conviction arose from a domestic dispute between Short and a

girlfriend; and (iv) Short’s counsel was ineffective. The Superior Court summarily

dismissed the motion because Short was no longer in custody or serving the

sentence in the Burglary Case. This appeal followed.

       (6)     On appeal, Short claims to have standing to file a postconviction

motion in the Burglary Case because that conviction was used to enhance the

sentence in the Robbery Case. The State has moved to affirm the Superior Court’s

judgment on the ground that Short lacked standing to move for postconviction

relief. We agree.

       (7)     A person loses standing to move for postconviction relief under Rule

61 when they are not in custody for the underlying offense or challenged sentence.2

Short was discharged as unimproved from probation in the Burglary Case in 2004

and the case was closed in 2011. Short is not in custody for the Burglary Case.

The Superior Court did not err in concluding that Short lacked standing to file a

motion for postconviction relief in the Burglary Case and dismissing Short’s

motion for postconviction relief.

2
  Super. Ct. R. 61(a) (“This rule governs the procedure on an application by a person in custody
under a sentence of this court seeking to set aside the judgment of conviction or a sentence of
death on the ground that the court lacked jurisdiction or on any other ground that is a sufficient
factual and legal basis for a collateral attack upon a criminal conviction or a capital sentence.”)
(emphasis added); Summers v. State, 2003 WL 1524104, at *1 (Del. March 20, 2003) (holding
movant was not entitled to seek postconviction relief for 1993 conviction because he had been
discharged from probation for 1993 conviction and was no longer in custody for 1993
conviction).


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     (8)   NOW, THEREFORE, IT IS ORDERED that motion to affirm is

GRANTED and the judgment of the Superior Court is AFFIRMED.

                                 BY THE COURT:



                                 /s/ Karen L. Valihura
                                        Justice




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