         IN THE SUPREME COURT OF THE STATE OF DELAWARE

ERNEST RICHARDSON,                        §
                                          §
       Defendant Below,                   § No. 60, 2019
       Appellant,                         §
                                          § Court Below—Superior Court
       v.                                 § of the State of Delaware
                                          §
STATE OF DELAWARE,                        § Cr. ID No. 0909018120 (N)
                                          §
       Plaintiff Below,                   §
       Appellee.                          §

                          Submitted: April 8, 2019
                          Decided:   May 14, 2019

Before STRINE, Chief Justice; SEITZ and TRAYNOR, Justices.

                                  ORDER

      After consideration of the appellant’s opening brief, the State’s motion to

affirm, and the record on appeal, it appears to the Court that:

      (1)    The appellant, Ernest Richardson, appeals from the Superior Court’s

order dated January 17, 2019, denying his third motion for postconviction relief

under Superior Court Criminal Rule 61. The State has filed a motion to affirm the

Superior Court’s judgment on the ground that it is manifest on the face of

Richardson’s opening brief that the appeal is without merit. We agree and affirm,

though on a different basis than that articulated by the Superior Court.

      (2)    In 2010, a Superior Court jury found Richardson guilty of Rape First

Degree, two counts of Rape Second Degree, and Rape Fourth Degree. The jury
found Richardson not guilty of Sexual Solicitation of a Child and Unlawful Contact

Second Degree. The Superior Court sentenced Richardson to fifty years of Level V

incarceration, followed by probation.

         (3)     On appeal, this Court reversed and remanded for a new trial.1 On

remand, Richardson pleaded no contest to Rape Fourth Degree and Unlawful Sexual

Contact First Degree. In exchange, the State dismissed the other charges. The plea

agreement form indicates that Richardson would be required to register as a sex

offender under 11 Del. C. §§ 4120, 4121 and that his Risk Assessment Tier would

be Tier II. The Superior Court sentenced Richardson as follows: for Rape Fourth

Degree, to fifteen years of Level V incarceration, suspended after thirty months for

two years of probation, and for Unlawful Sexual Contact First Degree, to eight years

of Level V incarceration, suspended after eighteen months for two years of

probation. The sentence also required Richardson to “register as [a] sex offender

pursuant to statute.”        The sentencing order does not state the applicable Risk

Assessment Tier, although during the sentencing hearing counsel and the Superior

Court repeatedly stated that Richardson would be required to register as Tier II.

         (4)     When the date on which Richardson would be released from prison and

begin serving probation was approaching, the Department of Correction apparently

informed him that he would be required to register as a Tier III sex offender, rather


1
    Richardson v. State, 43 A.3d 906 (Del. 2012).


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than as Tier II. In 2013, he filed two motions seeking to modify the tier designation

from Tier III to Tier II. Each of those motions was denied when Richardson failed

to appear for the scheduled hearings.

       (5)     In April 2015, Richardson filed a motion for postconviction relief in

which he challenged the requirement that he register as a Tier III sex offender, rather

than as Tier II. On November 4, 2015, the Superior Court dismissed that motion,

holding that, under Superior Court Criminal Rule 61, only a person who is “in

custody” may bring a motion for postconviction relief. 2 Because by that time

Richardson had been discharged from probation and his case had been closed, the

Superior Court held that he was not “in custody” and therefore lacked standing to

seek postconviction relief.         In February 2016, he filed a second motion for

postconviction relief raising the same issues; the Superior Court dismissed that

motion because he was not “in custody” and therefore lacked standing under Rule

61.

       (6)     On December 3, 2018, Richardson filed a third motion for

postconviction relief, again arguing that he should be required to register under Tier

II and not Tier III or should be permitted to withdraw his no-contest plea. The



2
  See SUPER. CT. CRIM. R. 61(a)(1) (“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.”).


                                                3
Superior Court also dismissed that motion because he was not “in custody.”

Richardson has appealed.

       (7)     The State argues that the Superior Court did not err by summarily

dismissing Richardson’s third postconviction motion on the grounds that Richardson

was no longer “in custody” for his sentence in this case as required by Rule 61. 3

This Court has held that:

       Under Delaware law, once a criminal sentence is completed, any
       postconviction claim with respect to that conviction is moot because the
       defendant is no longer “in custody or subject to future custody” as a result of
       that conviction. The only exception to the rule is when the defendant “suffers
       collateral legal disabilities or burdens.” The defendant has the burden of
       “demonstrating specifically a right lost or disability or burden imposed, by
       reason of the instant conviction.” 4

Richardson argues that Tier III sex offender registration imposes collateral legal

disabilities or burdens, as compared with Tier II registration, and therefore he is “in

custody” for purposes of Rule 61.

       (8)     This Court has not decided whether an ongoing requirement for

registration as a sex offender after the other terms of a sentence have been completed


3
  It appears that on May 21, 2018, Richardson pleaded guilty to a new charge of Rape Second
Degree and was sentenced to twenty-five years of incarceration, suspended after fifteen years for
decreasing levels of supervision.
4
  Paul v. State, 2011 WL 3585623, at *1 (Del. Aug. 15, 2011) (citations omitted). See also Gural
v. State, 251 A.2d 344 (Del. 1969) (adopting the federal “collateral consequences” rule for
postconviction proceedings, which held that “the satisfaction of the sentence renders the case moot
unless, in consequence of the conviction or sentence, the defendant suffers collateral legal
disabilities or burdens; in which event the defendant is considered to have a sufficient stake in the
conviction or sentence to survive the satisfaction of the sentence and to permit him to obtain a
review or institute a challenge”).


                                                 4
constitutes “custody” or a collateral legal disability or burden under Delaware law.5

Nor has the Court considered whether the differences between Tier II and Tier III

registration are sufficiently significant to constitute a collateral legal disability or

burden. But we need not do so in this case because, even if Richardson were deemed

to be “in custody,” Richardson’s motion was procedurally barred by the other

provisions of Rule 61.6

       (9)     Under Rule 61, no second or subsequent motion is permitted under this

Rule unless the motion pleads with particularity the existence of new evidence that

creates a strong inference of actual innocence or a new rule of constitutional law that

is retroactively applicable,7 or the motion asserts a claim that the court lacked

jurisdiction.8 Moreover, “any first motion for relief under this rule and that first

motion’s amendments shall be deemed to have set forth all grounds for relief


5
  Many federal courts have determined that a challenge to a sex offender registration requirement
is not cognizable in a habeas corpus proceeding because sex offender registration does not satisfy
the “in custody” requirement of the federal habeas corpus statute. E.g., Cravener v. Cameron,
2010 WL 235119 (W.D. Pa. Jan. 15, 2010) (discussing cases). Cf. also Mitchell v. United States,
977 A.2d 959, 964 (D.C. Ct. App. 2009) (“[T]hose jurisdictions that have addressed whether sex
offender registration requirements render prospective registrants ‘in custody’ have all concluded
that the custody requirement turns largely on the notion of a physical sense of liberty—that is,
whether the legal disability in question somehow limits one’s freedom of movement. Those courts
have held that the classification, registration, and notification requirements are more properly
characterized as a collateral consequence of conviction rather than as a physical restraint on liberty.
As such, they have concluded that imposition of sex offender registration does not render habeas
petitioners ‘in custody.’” (citation omitted)).
6
  This Court may affirm the Superior Court’s judgment “on the basis of a different rationale than
that which was articulated by the trial court.” Unitrin, Inc. v. Am. Gen. Corp., 651 A.2d 1361 (Del.
1995).
7
  SUPER. CT. CRIM. R. 61(i)(2)(i), (d)(2)(i)-(ii).
8
  Id. R. 61(i)(5).


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available to the movant,”9 and “[a]ny ground for relief that was formerly adjudicated,

whether in the proceedings leading to the judgment of conviction, in an appeal, in a

postconviction proceeding, or in a federal habeas corpus proceeding, is thereafter

barred.”10 Richardson’s third motion for postconviction relief did not plead with

particularity the existence of new evidence that creates a strong inference of actual

innocence or a new rule of constitutional law that applies to his case.11 Nor did it

assert that the Superior Court lacked jurisdiction to enter a judgment of conviction

and sentence him. The Superior Court has previously adjudicated his challenge to

the Tier III designation, from which he did not timely appeal,12 and any arguments

that Richardson may be attempting to raise that he did not raise in his earlier motions

have been waived.13

       (10) Finally, we note that Richardson pleaded guilty in May 2018 to Rape

Second Degree, and he is serving a lengthy prison sentence. Upon his release from



9
  Id. R. 61(i)(2)(ii).
10
   Id. R. 61(i)(4).
11
   Richardson asserts, without explanation, that Montgomery v. Louisiana, 136 S. Ct. 718 (2016),
applies to his case. In Montgomery, the United States Supreme Court held that its ruling in Miller
v. Alabama, 567 U.S. 460 (2012), which prohibited mandatory sentences of life without parole for
juvenile offenders, was retroactively applicable. Montgomery and Miller do not apply in this case,
because Richardson was not a juvenile subject to a mandatory sentence of life without parole.
Moreover, Richardson did not bring his third motion for postconviction relief within one year of
the Montgomery decision. SUPER. CT. CRIM. R. 61(i)(1).
12
   On May 4, 2018, Richardson filed a notice of appeal from the Superior Court’s November 4,
2015 order dismissing his first Rule 61 motion. This Court dismissed that appeal as untimely.
Richardson v. State, 238, 2018, Docket Entry No. 8 (Del. May 31, 2018).
13
   SUPER. CT. CRIM. R. 61(i)(2)(ii).


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incarceration for that conviction, he will be required to register as a Tier III sex

offender.14 Thus, the requirement that he register as a Tier III sex offender in this

case is without any real consequence.

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

GRANTED and the judgment of the Superior Court is AFFIRMED.



                                           BY THE COURT:


                                           /s/ Gary F. Traynor
                                           Justice




14
  See 11 Del. C. § 4121(d)(1)a (providing that persons convicted of Rape Second Degree shall be
assigned to Risk Assessment Tier III).


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