IN THE SUPERIOR COURT OF THE STATE OF DELAWARE

STATE OF DELAWARE
ID# 1508004310
V.

CHRISTOPHER J. TIGANI,

a a a a a a

Defendant

Submitted: October 9, 2019
Decided: January 30, 2020

COMMISSIONER’S REPORT AND RECOMMENDATION THAT
DEFENDANT?’S REQUEST FOR POST CONVICTION RELIEF
SHOULD BE SUMMARILY DISMISSED

Zachary Rosen, Esquire, Deputy Attorney General, Department of Justice,
Wilmington, Delaware, Attorney for the State.

Christopher J. Tigani, James T. Vaughn Correctional Institution, Smyrna, Delaware,
pro Se.

Salomone, Commissioner
This 30" day of January 2020, upon consideration of Defendant’s Motion for
Postconviction Relief, it appears to the Court that:

BACKGROUND AND PROCEDURAL HISTORY

I. Defendant entered into a guilty plea on March 2, 2016 and was
sentenced to a total of fifteen years of unsuspended Level 5 time on May 27, 2016
for the following crimes: two counts of Robbery First Degree, two counts of
Possession of a Firearm During the Commission of a Felony, one count of Robbery
Second Degree and two counts of Attempted Robbery Second Degree. !

a On August 12, 2016, Defendant requested a modification of his
sentence pursuant to Superior Court Criminal Rule 35(b).* In that regard, Defendant
requested that the Court specifically sentence him to the Key Program.

3. On June 29, 2017, Defendant’s sentencing order was modified to
provide for the specific amount of restitution due to his victims. All other aspects
of the sentence remained the same.?

4, On September 24, 2019, Defendant filed this Motion for Postconviction

Relief. In this Motion, Defendant presents three grounds for relief:

 

'D.L. 6.
2D. 7.

3D. 10.
i. Ground One - Unfulfilled Plea Agreement: Defendant states that
his Plea Agreement requires the Department of Corrections to keep him safe
and to provide adequate health care and that his needs are not being met.*

il. Ground Two - Witness Assistance: Defendant states that he was
a witness in the murder trials of Steven Floyd which resulted in two
convictions.°

ili. Ground Three - Ineffective Assistance of Counsel: Defendant
states that neither the judicial system nor criminal procedures were explained
to him by counsel. Additionally, Defendant asserts that counsel did not file a

Writ of Habeas Corpus on his behalf despite his request.

LEGAL ANALYSIS OF CLAIMS
5. Rule 61 is the remedy for defendants “in custody under a sentence of
this court seeking to set aside the judgment of conviction... .”° Prior to reviewing
Rule 61 claims on the merits, this Court “must first consider the procedural

requirements of Rule 61 before addressing any substantive issues.”

 

* Defendant’s complaint that his health care needs are not being met is more appropriately filed as
a Writ of Mandamus. See Brittingham v. Town of Georgetown, 113 A.3d 519, 524 (Del. 2015);
see also Shah v. Coupe, 2014 WL 5712617, (Del. Super. Nov. 3, 2014); see also Pinkston v. DE
Dept. of Corr., 2013 WL 6439360, (Del. Super. Dec. 4, 2013). Alternatively, Defendant might
seek a sentence modification pursuant to Rule 35(b). See Del. Super. Ct. Crim. R. 35(b). However,
under Rule 35(b), “the court will consider an application made more than 90 days after the
imposition of sentence only in extraordinary circumstances or pursuant to 11 Del. C. § 4217.” Id.

° Ground Two is likewise a request for a sentence modification which must be brought pursuant
to Rule 35(b). Jd.

® Del. Super. Ct. Crim. R. 61.

7 State v. Stanford, 2017 WL 2484588, at *2 (Del. Super. Ct. June 7, 2017) (quoting Bradley v.
State, 135 A.3d 748, 756 (Del. 2016)).
6. Rule 61 imposes a number of procedural bars regarding
timeliness,® successiveness,’ procedural default,!? and former adjudication.!! A
motion is untimely if it is filed more than one year after the conviction is final or
defendant asserts a new constitutional right that is retroactively applied more than
one year after it is first recognized.'* A motion is successive if it is a “second or
subsequent motion.”' If any of these bars apply, the movant must show entitlement
to relief under Rule 61(i)(5).!*

7. Defendant’s motion is procedurally barred because it is untimely.
Pursuant to Rule 61(1)(1), “[a] motion for postconviction relief may not be filed more
than one year after the judgment of conviction is final or, if it asserts a retroactively

applicable right that is newly recognized after the judgment of conviction is final,

 

8 Td. at 2 (citing Del. Super. Ct. Crim. R. 61(i)(1)).

? Id. at 2 (citing Del. Super. Ct. Crim. R. 61(i)(2)).

'0 Td. at 2 (citing Del. Super. Ct. Crim. R. 61(i)(3)).

'l Td. at 2 (citing Del. Super. Ct. Crim. R. 61(i)(4)).

!2 Del. Super. Ct. Crim. R. 61(i)(1).

13 Del. Super. Ct. Crim. R. 61(i)(2).

\4 Stanford, WL 2484588, at *2. Rule 61(i)(5) provides that “[t]he bars to relief in paragraphs (1),
(2), (3), and (4) of this subdivision 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.” Del. Super. Ct. Crim. R. 61(i)(5).
more than one year after the right is first recognized by the Supreme Court of
Delaware or by the United States Supreme Court.”!°

8. Here, Defendant was sentenced on May 27, 2016. Defendant did not
file a direct appeal and therefore his judgment of conviction became final on June
26, 2016.'° Defendant’s Motion for Postconviction Defendant was filed on
September 24, 2019 -- more than three (3) years after Defendant’s judgment became
final. In addition to the foregoing, Defendant’s Motion fails to assert a retroactively
applicable right that is newly recognized by the Supreme Court of Delaware or by
the United States Supreme Court. Since the motion was filed outside the applicable
time limit, Defendant’s claims are time-barred.'”

9. The procedural bar referenced above will not apply 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 Rule 61.'8 Defendant has not

raised the issue of lack of jurisdiction and the Motion does not satisfy the necessary

 

'S Del. Super. Ct. Crim. R. 61(i)(1).

'6 Pursuant to Superior Court Criminal Rule 61(m)(1), a judgment of conviction is final for
purposes of Rule 61 within 30 days after the Court imposes sentence if the defendant has not filed
a direct appeal.

17 See State v. Lum, 2007 WL 104145, at *3 (Del. Super. Mar. 22, 2007) (holding claims of
ineffective assistance of counsel filed more than 16 years after conviction became final were
procedurally barred); State v. Marine, 2015 WL 3429920 (Del. Super. May 13, 2015) (finding
motion filed more than 9 years after sentencing was procedurally barred as untimely).

'8 Superior Court Criminal Rule 61(i)(5).
pleading requirements of Rule 61(d)(2). Rule 61(d)(2) only applies to second or
subsequent motions under Rule 61 where the movant was convicted after a trial.
This is Defendant’s first Rule 61 motion and he did not have a trial since he pled
guilty. As such, Defendant has failed to meet the pleading requirements of Rule
61(d)(2)(i)-Gi) and has not presented any argument to justify relief from the
procedural bars.

10. For the foregoing reasons, Defendant’s Motion for Postconviction
Relief should bb SUMMARILY DISMISSED.

IT IS SO RECOMMENDED.

Tie Honorable Janine M. Salomone
