IN THE SUPERIOR COURT OF THE STATE OF DELAWARE

STATE OF DELAWARE )
)
v. ) I.D. No. 30900498DI

)

)

BRYANT GIBBS, )
)

Defendant. )

Submitted: December 13, 2016
Decided: January 12, 2017

ORDER

Upon Defendant’s Motion for Postconviction Relief
SUMMARILY DISMISSED

Upon Defendant’s Request for Appointment of Postconviction C ounsel
DENIED

Upon Defendant’s Request for an Evidentia)y Hearing
DENIED AS MOOT

Upon consideration of the Motion for Postconviction Relief (“PCR Motion”)
filed by Defendant Bryant Gibbs (“Defendant”); Rule 61 of the Superior Court
Rules of Criminal Procedure (“Rule 61”); the facts, arguments and legal authorities
set forth by Defendant; statutory and decisional laW; and the entire record in this

case, the Court hereby finds as folloWs:
l. On August 8, 1989, Defendant Was charged With thirty-six felony

offenses Each of these crimes represented very serious and violent criminal

conduct.

2. A jury found Defendant guilty of thirty-three felony offenses,
including multiple counts of Robbery First Degree, Conspiracy First Degree,
Conspiracy Second Degree, Kidnapping First Degree, Possession of a Deadly
Weapon During Commission of a Felony, and Attempted Murder First Degree.
The jury found Defendant not guilty of two charges. The State dismissed one
charge.

3. By Order dated November 13, 1989, Defendant Was sentenced The
effective date of the sentence imposed Was December 26, 1988.

4. Defendant presented a direct appeal to the Delaware Supreme Court.
The Delaware Supreme Court affirmed Defendant’s convictions and sentence.l

5. Defendant has filed numerous motions for postconviction relief. The
Superior Court has considered and denied Defendant’s motions.

6. On July ll, 2016, Defendant filed a motion for appointment of
postconviction counsel pursuant to Rule 61. By Order dated August 16, 2016, the
Court denied Defendant’s motion.2

7. On December 13, 2016, Defendant filed the PCR Motion that is
currently before the Court. Defendant also requests this Court to appoint

postconviction counsel and hold an evidentiary hearing

 

' Gibbs v. sze, 1990 WL 197879(D61.N0v. 19, 1990).
2 State v. Gibbs, 2016 WL 4368176 (Dei. super. Aug. 16, 2016).

2

8. Rule 6l(d)(2) governs Defendant’s PCR Motion.3 Under Rule
6l(d)(2), the Court shall summarily dismiss a second or subsequent motion for
postconviction relief unless the movant was convicted after a trial and the motion
either (1) 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 (2) pleads with particularity 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.4

9. Defendant alleges that he received ineffective assistance of counsel
and that his confession was coerced. However, these grounds for relief have
already been considered in Defendant’s previous motions for postconviction
relief,5 and are procedurally barred as formerly adjudicated6 Moreover, Defendant
fails to plead with particularity that new evidence exists that creates a strong
inference that Defendant is actually innocent or that a new rule of constitutional
law retroactively invalidates Defendant’s convictions7 Rather, the record contains

sufficient evidence for a rational jury to have found Defendant guilty of the crimes

 

3 Rule 6l(d)(2) applies to second or subsequent motions for postconviction relief.

4 Super. Ct. Crim. R. 6l(d)(2)(i)_(ii); Super. Ct. Crim. R. 6l(i)(2)(i).

5 State v. Gl`bbs, 1992 WL 52136, at *2 (Del. Super. Mar. 6, 1992), ajj"d, 1992 WL
151427 (Del. May 20, 1992).

6 super. Ct. Crim. R. 61(i)(4).

7 super. Ct. Crim. R. ei(d)(z)(iy(ii).

for which he was convicted Accordingly, Defendant fails to demonstrate that he is
entitled to postconviction relief.

10. Defendant contends that the Superior Court’s decision in State v.
Bridgers8 retroactively invalidates Defendant’s robbery convictions In Bridgers,
the Court held that a bystander to robbery who is threatened with a deadly weapon
is not a victim of robbery, but the lesser-included offense of aggravated menacing.9
Defendant asserts that the robbery victims in his case were mere bystanders
Therefore, Defendant argues that Bria’gers requires this Court to invalidate
Defendant’s robbery convictions

11. Defendant fails to make a particularized showing that the victims in
Defendant’s case constitute bystanders under Bridgers. To the contrary,
Defendant’s assertion is conclusory and unsupported by the record. Moreover,
there is no indication that Bridgers “re-defined or re-interpreted the elements of a
first degree robbery offense and made such re-interpretation retroactively
applicable to cases on collateral review.”lo Accordingly, the Court finds that
Defendant fails to plead with particularity that Bridgers retroactively invalidates

Defendant’s robbery convictions

12. Defendant contends that the Superior Court’s decision in State v.

 

8 988 A.2d 939 (Del. Super. 2007),@!7'¢1, 2009 wL 824536 (Del. Mar. 30, 2009).

9 Bridgers, 988 A.2d at 944.
‘O Desmond v. Phelps, 2012 wL 3518531,at*2(D.De1.Aug. 15, 2012).

4

Amclo’ll retroactively invalidates Defendant’s kidnapping convictions In Amao’,
the Court held that “when a defendant is charged with kidnapping in conjunction
with an underlying offense, the jury must be instructed that the restraint upon
which the kidnapping is premised has to be independent of and not incidental to

>»lZ

the underlying crime in order to convict for the kidnapping Furthermore, the

Amao’ Court held that, prior to submitting a kidnapping charge to a jury, “the trial
judge must first determine, as a matter of law, if the evidence proves ‘that there
was much more (substantial) interference with the victims (sic) liberty than is
ordinarily incident to the underlying crime.”’]3 Defendant argues that Defendant’s
convictions are contrary to the Court’s holding in Amad because Defendant “was
never accused of nor did he commit restraint of robbery victims that was
substantially greater than that normally incident to underlying robbery.”14

13. Defendant is “entitled to a specific instruction that, to convict on the
kidnapping charge, the jury must find that the movement and/or restraint of the
,,15

victim is ‘independent oF and not ‘incidental to’ the underlying crime.

However, the record reflects that the trial judge provided a jury charge to that exact

 

ll 767 A.2d 806 (Del. Super. 1999), overruled on other grounds by Poteat v. State,
840 A.2d 599 (Del. 2003).

12 Amad, 767 A.2d at 808.

'3 167 (quoting Weber v. Sm¢e, 547 A.2d 948, 959 (Del. 1988)).

‘4 Def.’S PCR Mot. at 3.

15 Wright v. State, 980 A.2d 372, 376 (Del. 2009) (citing Weber, 547 A.2d at 959).

5

effect.16 Moreover, Defendant fails to make a particularized showing that the
degree of restraint to Defendant’s victims was limited to what is typically
associated with robbery. To the contrary, the record contains sufficient evidence
for a rational jury to have concluded that Defendant utilized much more restraint
than what is ordinarily incidental to robbery. Defendant’s assertion is conclusory
and unsupported by the record. Accordingly, the Court finds that Defendant fails
to plead with particularity that Amao’ retroactively invalidates Defendant’s
kidnapping convictions

14. The Court may appoint counsel for an indigent movant’s second or
subsequent motion for postconviction relief only if the motion satisfies the
pleading requirements to avoid summary dismissal under Rule 61(d)(2)(i)-(ii).17
As previously discussed, Defendant fails to satisfy the pleading requirements to
avoid summary dismissal Accordingly, Defendant’s request for counsel must be
denied.

15. Defendant’s PCR Motion qualifies for summary dismissal pursuant to
Rule 61(d)(2). Furthermore, Defendant fails to satisfy the pleading requirements to

avoid summary dismissal. Specifically, Defendant fails to plead with particularity

 

‘6 State v. Gibbs, I.D. NO. 30900498D1, at 106;6_10(De1. super. Aug. 14, 1989)
(TRANSCRIPT) (“THE COURT: . . .To ‘interfere substantially’ with one’s
liberty, it is not the degree or duration of the movement and/or restraint, but
whether the movement and/or restraint are incident to the underlying offense or are
independent of the underlying offense.”).

" super. Ct. Crim. R. 61(@)(4).

that new evidence exists that creates a strong inference that Defendant is actually
innocent of the acts underlying his conviction, or that a new rule of constitutional
law retroactively invalidates his conviction.]8 Accordingly, the Court finds that
Defendant’s PCR Motion must be summarily dismissed

NOW, THEREFORE, this 12th day of January, 2017, Defendant’s
Motion for Postconviction Relief is hereby SUMMARILY DISMISSED.
Defendant’s request for appointment of postconviction counsel is hereby
DENIED. Defendant’s request for an evidentiary hearing is hereby DENIED
AS MOOT.

IT IS SO ORDERED.

/Zlm{rea L Rocane[[z`

 

The Honorable Andrea L. Rocanelli

 

‘8 super. Ct. Crim. R. 61(d)(2)(iy(ii).

