                                          SUPERIOR COURT
                                              OF THE
                                        STATE OF DELAWARE

RICHARD F. STOKES                                                 SUSSEX COU NTY C OUR THO USE
                  JUDGE                                                    1 THE CIRCLE, SUITE 2
                                                                           GEORGETOWN, DE 19947
                                                                            TELEPHONE (302) 856-5264




                                            March 25, 2015



William T. Windsor, III
SBI# 002
James T. Vaughn Correctional Center
1181 Paddock Road
Smyrna, DE 19977

       RE: State of Delaware v. William T. Windsor,
           Def. ID#s 1212009736A and 1212009736B ( R-1)

                               DATE SUBMITTED: February 25, 2015

Dear Mr. Windsor:

       Pending before the Court is the motion of William T. Windsor (“defendant”) for

postconviction relief pursuant to Superior Court Rule 61 (“Rule 61"). The applicable version of

Rule 61 is that enacted on June 4, 2014.1 This is the Court’s decision summarily denying the

motion. Because defendant does not set forth a substantial claim that defendant received

ineffective assistance of counsel in relation to his pleas of guilty and nolo contendere and

because no other specific exceptional circumstance(s) exist warranting the appointment of


       1
           A copy of that version is enclosed herein.

                                                1
counsel,2 I deny defendant’s request for the appointment of counsel. Because the motion is

summarily dismissed, no need exists either to have trial counsel submit an affidavit or to have

the State of Delaware (“the State”) respond.

       On or about December 15, 2012, defendant was arrested on 151 counts stemming from

sex offenses against the two daughters of his girlfriend. He was indicted, on February 18, 2013,

on 160 criminal counts: rape in the second degree (3 counts); continuous sexual abuse of a child

(2 counts); sexual abuse of a child by a person in a position of trust in the first degree (10

counts); rape in the fourth degree (3 counts); sexual solicitation of a child (10 counts); sexual

abuse of a child by a person of trust in the second degree (87 counts); unlawful sexual contact in

the second degree (43 counts); and endangering the welfare of a child (2 counts).

       Defendant, through trial counsel, moved for a bill of particulars, to sever the charges

related to the two victims, and to suppress his statement to the police. The defense withdrew the

motion for a bill of particulars.3 This Court granted the motion to sever. As to defendant’s

statement, the parties agreed that, in its case in chief, the State would not use defendant’s

statement after the one hour and twenty-five minute mark of the tape of the interview.4 The Court

made further rulings regarding the statement. It ruled that defendant made a voluntary, knowing

and intelligent waiver of his Miranda rights, and it further ruled that defendant’s statements were




       2
           Rule 61(e)(2).
       3
           State v. Windsor, Def. ID# 1212009736A, Docket Entry No. 15.
       4
        Transcript of August 8, 2013 Proceedings, Docket Entries 46 (Def. ID# 1212009736A)
and 14 (Def. ID# 1212009736B) at 2-11.

                                               2
not coerced.5

       Thereafter, the Court ordered the State to reduce the number of charges against defendant

to avoid undue prejudice. On the morning of jury selection, the State presented two pared down

indictments. In the first, there were 12 counts (from 151) as to Victim 1 and in the second, there

were 8 counts (from 9) as to Victim 2. Later that day, defendant pled guilty to one count of rape

in the second degree as to Victim 1 (ID# 1212009736A) and he pled nolo contendere to

continuous sexual abuse of a child as to Victim 2 (Def. ID# 1212009736B).6

       As the Supreme Court explained in defendant’s appeal, the following occurred regarding

the plea:

       Before accepting his plea, the Superior Court conducted a lengthy colloquy with
       Windsor. During the colloquy, Windsor stated under oath that: (i) he had freely
       and voluntarily decided to plead guilty to rape in the second degree and nolo
       contendere to continuous sexual abuse of a child; (ii) he had not been promised
       anything that was not stated in the written plea agreement; (iii) nobody had forced
       or threatened him to enter the plea; (iv) he understood that by entering the plea
       there would not be a trial and that he would be waiving several constitutional
       rights, including the right to be presumed innocent until the charges were proven
       beyond a reasonable doubt and the right to hear and question witnesses; and (v) he
       understood that he could receive a total maximum penalty of fifty years of
       incarceration.7

       Defendant was sentenced on December 13, 2013.8 During the sentencing proceedings,

defendant asked the Court if he could withdraw his pleas pursuant to Superior Court Criminal


       5
           Id. at 12-22.
       6
       Transcript of September 9, 2013 Proceedings at 48-64, Docket Entries 51 (Def. ID#
1212009736A) and 17 (Def. ID# 1212009736B).
       7
           Windsor v. State, 100 A.3d 1022, 2014 WL 4264915, *1(Del. Aug. 28, 2014).
       8
       Transcript of December 13, 2013 Proceedings, Docket Entries 48 (Def. ID#
1212009736A) and 16 (Def. ID# 1212009736B)

                                              3
Rule 32(d).9 Trial counsel did not file such a motion and explained he did not know defendant

was going to make such a request. The Court refused to hear the motion because it was not made

by way of his attorney, it was not filed with notice to the State, and the evidence of defendant’s

guilt was so overwhelming. The Court considered defendant’s motion to be a delaying tactic.10

       The Court found aggravating factors existed and sentenced defendant as follows. As to

the rape in the second degree conviction, he was sentenced to 25 years at Level 5, suspended

after 20 years for decreasing levels of supervision. As to the continuous sexual abuse of a child

conviction, he was sentenced to 25 years at Level 5, suspended after 2 years for probation.

       Defendant appealed. The issues raised on appeal and the Supreme Court’s resolution of

those issues are examined below because defendant resubmits them in this Rule 61 motion.11

       Issue 1: The Superior Court erred by refusing to allow him to present the motion to

withdraw his pleas.

       The Supreme Court ruled that because trial counsel did not file the motion, defendant’s

motion “was a legal nullity.”12 The Supreme Court further ruled:


       9
           Superior Court Criminal Rule 32(d) provides:

         Plea withdrawal. If a motion for withdrawal of a plea of guilty or nolo
       contendere is made before imposition or suspension of sentence or disposition
       without entry of a judgment of conviction, the court may permit withdrawal of the
       plea upon a showing by the defendant of any fair and just reason. At any later
       time, a plea may be set aside only by motion under Rule 61.

       10
       Transcript of December 13, 2013 Proceedings, Docket Entries 48 (Def. ID#
1212009736A) and 16 (Def. ID# 1212009736B) at 10-12.
       11
            Windsor v. State, supra at **3-5.
       12
            Id. at *3.

                                                4
       That the Superior Court acted within its discretion is also reinforced by the
       extensive colloquy that the Superior Court had with Windsor before accepting his
       guilty plea. Although Windsor may have sought to withdraw his guilty plea based
       on a supposed promise that he would receive a twelve year sentence, the written
       plea agreement and plea colloquy were clear and to the contrary. The plea
       agreement, signed by Windsor, expressly stated that the maximum penalty for the
       offenses was fifty years incarceration. During the plea colloquy, Windsor stated
       the he understood each offense was punishable by two to twenty-five years of
       incarceration and that the maximum penalty he could receive was up to fifty years
       of incarceration, of which twelve years was a minimum-mandatory sentence.13

       Issue 2: “[T]he sentence was outside statutory guidelines, resulted from judicial bias and

prejudice, exceeded the parties’ ‘outside oral agreement,’ and constituted cruel and unusual

punishment under the Eighth Amendment”.14

       The Supreme Court concluded these challenges were without merit. Defendant’s sentence

was within statutory limits. Delaware Sentencing Accountability Commission (“SENTAC”)

Guidelines are voluntary and non-binding. A defendant has no right to appeal a sentence on the

ground it does not comply with SENTAC Guidelines.

       The Supreme Court further concluded:

         As far as Windsor’s claim that the Superior Court demonstrated bias and
       prejudice by referring to his physical size compared to the victims [sic] and his
       use of economic pressure on the victims and their mother, Windsor does not
       contend that either of those statements was false or based on false information.
       And each was a case-specific factor that rationally bore on the sentence Windsor
       should receive. The Superior Court imposed the sentence after receiving the
       presentence investigation as well as materials submitted by Windsor’s relatives,
       reviewing the record, and hearing statements from Windsor’s counsel, Windsor’s
       family members, Windsor, the State and the victims. The record reflects that the
       sentence was based on the nature of Windsor’s crimes and does not support



       13
            Id. (Footnotes and citations omitted).
       14
            Id.

                                                     5
        Windsor’s claims of bias and prejudice.15

        The Supreme Court also ruled that the plea agreement and colloquy contradict

defendant’s contention that the sentence exceeded an outside oral agreement of a twelve year

sentence.

        Finally, the Supreme Court concluded that defendant’s Eighth Amendment challenge

failed because the sentence was within statutory limits and defendant did not offer any evidence

suggesting the sentence was grossly disproportionate to the crime.

        Issue 3: His right to confrontation was violated and he was deprived of due process by the

Court’s limiting his trial to three days.

        The Supreme Court ruled as follows. There was no plain error on this issue. Defendant

did not show how his right to confront witnesses was violated and nothing in the record

establishes such. Furthermore, he failed to explain why his case could not be tried in three days

or show how he could not have presented an effective defense in that amount of time.

        Issue 4: There was prosecutorial misconduct. The Supreme Court sets forth defendant’s

argument as follows:

          ... Windsor seems to claim that the prosecution engaged in misconduct by
        improperly consolidating the indictment to bring the cases involving Victim1 and
        Victim 2 together, bringing multiple and duplicative charges, and coercing him
        into pleading guilty by seeking to rejoin the cases against Victim1 and Victim 2. 16

        The Supreme Court concluded defendant had the opportunity to, and did, challenge the

attempted consolidation of the charges and did not show that the charges were unlawfully



        15
             Id. at *4.
        16
             Id.

                                                 6
duplicative. The Supreme Court further ruled:

         Windsor also repackages his claim by arguing that the rejoinder coerced him
       into pleading guilty. This claim is entirely without merit. Windsor stated under
       oath at his plea colloquy that no one had threatened or forced him to plead guilty
       and that he freely and voluntarily pled guilty to rape second degree and nolo
       contendere to continuous sexual abuse of a child. Absent clear and convincing
       evidence to the contrary, Windsor is bound by these statements. A claim of
       coercion in the plea bargaining process can only be substantiated if the State
       threatens to take action or takes action that is not legally authorized. Windsor fails
       to explain why it was improper at all, much less coercive, for the State to move to
       rejoin the Victim 1 and Victim 2 cases after reducing the number of charges
       involving each of the victims as urged by the Superior Court. In any event, the
       Superior Court denied the State’s motion to rejoin. Windsor was left to proceed to
       trial on twelve charges involving one victim, not a trial involving both victims
       with little notice as he appears to suggest.17

       Thus, the Supreme Court affirmed the judgment below. The mandate for the Supreme

Court decision was dated September 15, 2014.

       Defendant filed his pending Rule 61 motion on February 20, 2015.

       Before exploring his claims, I set forth the standards which apply to this matter. These

standards are clearly set forth by the Superior Court in State v. Hohn.18 Therein, pertinent

portions of the decision provide:

       3. ... Defendant's Motion for Postconviction Relief is controlled by the recently
       amended Superior Court Criminal Rule 61.FN4 Under Superior Court Criminal
       Rule 61(i), a Motion for Postconviction Relief can be potentially procedurally
       barred for time limitations, successive motions, procedural defaults, and former
       adjudications.FN5 Before addressing the merits of this Motion for Postconviction
       Relief, the Court must address any procedural requirements of Rule 61(i).FN6


                  FN 4 The most recent set of amendments to Super. Ct. Crim. R. 61
                  took effect on June 4, 2014.


       17
            Id. at *5 (Footnotes and citations omitted).
       18
            2105 WL 301982 (Del. Super. Jan. 21, 2015).

                                                    7
       FN 5 Super. Ct. Crim. R. 61(i)(1)-(4).


       FN 6 Younger v. State, 580 A.2d 552, 554 (Del. 1990).

4. Rule 61(i)(1) provides that a motion exceeds time limitations if it is filed more
than one year after the conviction is finalized, or if the motion asserts a newly
recognized, retroactively applied right more than one year after it is first
recognized.FN7

       FN 7 Super. Ct. Crim. R. 61(i)(1).
5. Rule 61(i)(2) provides that a motion is successive if it is the second or
subsequent motion made under this Rule, and such successive motions are
prohibited unless the pleading requirements of 61(d)(2)(i) or (ii) are met. FN8

       FN 8 See Super. Ct. Crim. R. 61(i)(2). For further discussion of the
       pleading standards articulated in the newly amended Rules, see
       infra.
6. Rule 61(i)(3) bars consideration [of] any ground for relief “not asserted in the
proceedings leading to the judgment of conviction,” unless the movant can show
“cause for relief from the procedural default” and “prejudice from violation of the
movant's rights.” FN9

       FN 9 Super. Ct. Crim. R. 61(i)(3).
7. Rule 61(i)(4) bars consideration of any ground for relief formerly adjudicated in
the case, including “proceedings leading to the judgment of conviction, in an
appeal, in a postconviction proceeding, or in a federal habeas corpus hearing.” FN10

       FN 10 Super. Ct. Crim. R. 61(i)(4).
8. If any of the above procedural bars exist, the Court will not consider the merits
of the claims unless the Defendant can show that the exception found in Rule
61(i)(5) applies.FN11

       FN 11 Super. Ct. Crim. R. 61(i)(5).
9. Rule 61(i)(5), as recently amended, provides that consideration of otherwise
procedurally barred claims is limited to claims that the Court lacked jurisdiction,
or claims that satisfy the new pleading standards set forth in 61(d)(2)(i) and
(ii).FN12 The new pleading standards require that the Motion either:

                                       8
       (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 ...
       invalid.FN13

       FN 12 Id.


       FN 13 Super. Ct. Crim. R. 61(d)(2)(i).
10. *** However, “[i]f it plainly appears from the motion for postconviction relief
and the record of prior proceedings in the case that the movant is not entitled to
relief, the judge may enter an order for its summary dismissal and cause the
movant to be notified.” FN15 “A movant must support his or her assertions with
‘concrete allegations of actual prejudice, or risk summary dismissal.’ ” FN16
Sufficiently developed allegations are required in support of all grounds for relief,
including claims of ineffective assistance of counsel.FN17 This Court “will not
address Rule 61 claims that are conclusory and unsubstantiated.” FN18

       FN 15 Super. Ct. Crim. R. 61(d)(5).


       FN 16 State v. Chambers, 2008 WL 4137988, at *1 (Del. Super.
       Aug. 25, 2008) (quoting State v. Childress, 2000 WL 1610766, at
       *1 (Del. Super. Sept. 19, 2000).


       FN 17 See, e.g., State v. Robbins, 1996 WL 769219, at *1 (Del.
       Super. Dec. 18, 1996).


       FN 18 State v. Owens, 2002 WL 234739, at *1 (Del. Super. Jan.
       11, 2002).
11. *** To successfully articulate an ineffective assistance of counsel claim, a
claimant must demonstrate: 1) that counsel's performance was deficient, and 2)
“that there is a reasonable probability that, but for counsel's errors, he would not



                                       9
      have pleaded guilty and would have insisted on going to trial.” FN19 To prove
      counsel's deficiency, a defendant must show that counsel's representation fell
      below an objective standard of reasonableness.FN20 Moreover, a defendant must
      make concrete allegations of actual prejudice and substantiate them or risk
      summary dismissal.FN21 ***


             FN 19 Albury v. State, 551 A.2d 53, 60 (Del. 1988) (citing Hill v.
             Lockhart, 474 U.S. 52 (1985)) (applying second prong Strickland
             analysis in the context of a guilty plea); See also Strickland v.
             Washington, 466 U.S. 668, 688 (1984).


             FN 20 Albury, 551 A.2d at 60.


             FN 21 Wright v. State, 671 A.2d 1353, 1356 (Del. 1996).

      12. *** A guilty plea entered voluntarily “constitutes a waiver or any alleged
      errors or defects occurring prior to the entry of the plea.FN22


             FN 22 Bentley v. State, 27 A.3d 550, 2011 WL 3793779, at *2
             (Del. 2011) (TABLE) (citing Downer v. State, 543 A.2d 309, 311-
             13 (Del. 1988)).


      With these standards in mind, I address defendant’s claims below.


Ground 1)


      Due process, violation of 14th amendment.


        6th, 8th and 14th Amend. rights were violated. The Judge used cruel and unusal
      [sic] punishment. The defendant was denied rule 32(d) without the opportunity of
      giving fair and just reasons. The defendant’s 6th amend. right to confrontation was
      violated. Defendant and counsel was [sic] not given the chance to review the
      presentence investigation report.


      The assertions of cruel and unusual punishment, denial of his right to present the motion

                                               10
to withdraw under Superior Court Criminal Rule 32(d), and the denial of his 6th amendment

right to confrontation are procedurally barred because they have been formerly adjudicated.19

Defendant has made no effort to establish the existence of either of the prongs which provide an

exception to this bar.20 Thus, those claims are procedurally barred and must be summarily

dismissed.

       Defendant claims that he and trial counsel were not given a chance to review the

presentence investigation report. Defendant was not entitled to review the presentence report.21

Trial counsel had that opportunity and the record establishes he reviewed it.22 However, the fact

that the claim is meritless is irrelevant because the claim fails on procedural grounds. It should

have been raised before the sentencing and if not then, then on appeal.23 Defendant has not shown

cause for relief from the procedural default and prejudice from violation of the movant's rights.

Furthermore, as noted above, defendant has not established the existence of any exceptions in

Rule 61(i)(5) to the procedural bars.

       The claims asserted in this ground fail.




       19
            Rule 61(i)(4).
       20
            Rule 61(i)(5).
       21
        Eaddy v. State, 679 A.2d 469, 1996 WL 313499, *2 (Del. May 30, 1996) (TABLE);
Bruton v. State, 2006 WL 258303 (Del. Super. Jan. 26, 2006).
       22
       Transcript of December 13, 2013 Proceedings, Docket Entries 48 (Def. ID#
1212009736A) and 16 (Def. ID# 1212009736B) at 3, 4.
       23
            Rule 61(i)(3). Eaddy v. State, supra.

                                                11
Ground 2)


       Judicial misconduct, violation of 6th amendment, “Procedure” rights.


         The sentencing Judge improperly denied the defendant’s motion to withdrawal
       of plea prior to the defendant establishing fair and just reasons. The Judge used
       prejudice and bias to sentence the defendant outside of plea agreement. Not giving
       defendant and counsel the opportunity to review presentence report.


       The assertions regarding the denial of the motion to withdraw the plea and that the Judge

used prejudice and bias to sentence defendant outside of the plea agreement are procedurally

barred because they were considered on appeal.24 Furthermore, defendant failed to establish any

exceptions to this bar exist.25 The claim regarding the presentence report fails for the reason set

forth in Ground 1. Thus, the claims asserted in this ground fail, also.

Ground 3)


       Prosecutorial misconduct, violation of 6th and 14th amend. equal protecton [sic]


         The prosecution improperly consolidated the defendant’s indictment. The
       prosecution used misconduct with multiplicious [sic] charges. The prosecution
       used coercion to get defendant to take a plea. Prosecution actions cumulatively
       deprived the defendant of a fair trial. The prosecution brought forth an illegal
       indictment.


       These claims are barred because the Supreme Court adjudicated them in defendant’s

appeal.26 Furthermore, defendant has failed to establish the existence of any exceptions to that



       24
            Rule 61(i)(4).
       25
            Rule 61(i)(5).
       26
            Rule 61(i)(4).

                                                 12
bar.27 These claims fail.


Ground 4)


       Ineffective assistance of counsel.


         Del. Supreme Court does not hear the grounds of ineffective assistance of
       counsel. Facts: Defense counsel failed to interview witnesses, victims or
       prosecution’s witnesses. Defense counsel failed to show defendant the D.V.Ds
       statements of victims or any evidence as medical reports. Defense counsel failed
       to make a motion to suppress victims statement. Defense counsel withdrawal of
       motion for the bill of particulars without communicating actions with defendant.
       Defense counsel and prosecution coerced the defendant in taking a plea. Defense
       counsel told the defendant that counsel thought the defendant was guilty. Defense
       counsel failed to review the presentence report. Defendant counsel failed to file
       amendment of the opening brief to the Del. Supreme Court.


       Defendant’s conclusory, one-sentence assertions of ineffective assistance of counsel do

not meet the requirements of Strickland.28 The Supreme Court explained that defendant would

need to establish that trial counsel was ineffective and but for the ineffective representation, he

would not have entered the pleas.29 Defendant has not even attempted to establish such. His

ineffective assistance of counsel claims fail for the foregoing reasons.

Ground 5)


       Harmful error, Illegal sentence resulting from plain error.


            The State made a harmful error by charging the defendant of 2 charges from the



       27
            Rule 61(i)(5).
       28
            Hohn v. State, 2015 WL 301982, at *2.
       29
            Windsor v. State, supra, at * 5.

                                                 13
        second case instead of charging the defendant on one charge from each case.


       This argument does not make sense. Defendant must present a logical argument which

the Court can understand and then consider. The Court will not speculate as to what defendant

means. The Court dismisses this ground.

Ground 6)


       Illegal indictment.


         The prosecution took charge IS13020422 from case (b) and put it in as a charge
       in case (A).


       This argument also does not make sense. Again, defendant must present a logical

argument which the Court can understand and then consider; the Court will not speculate as to

what defendant means. Thus, the Court dismisses this ground.

Ground 7)


       Multiplicity


         The prosecution used misconduct with multiplicious [sic] charges. Counts 16-25
       sexual solicitation of a child. Counts 26-107 sexual abuse of a child. Counts 108-
       150 unlawful sexual contact.


       This claim is barred because the Supreme Court adjudicated it in defendant’s appeal.30

Furthermore, defendant has failed to establish the existence of any exceptions to that bar.31 The




       30
            Rule 61(i)(4).
       31
            Rule 61(i)(5).

                                                14
claim fails.

       For the foregoing reasons, the Court summarily dismisses defendant’s motion for

postconviction relief.

       IT IS SO ORDERED.


                                               Very truly yours,


                                                  /s/ Richard F. Stokes


                                               Richard F. Stokes


cc: Prothonotary’s Office
   John W. Donahue, IV, Esquire
   James P. Murray, Esquire




                                             15
