      IN THE SUPERIOR COURT OF THE STATE OF DELAWARE

                                               )
STATE OF DELAWARE                              )
                                               )
          v.                                   )   I.D. No. 0901009990A
                                               )
JOSEPH DICKINSON,                              )
                                               )
                         Defendant.            )
                                               )


                             Submitted: November 19, 2015
                              Decided: February 15, 2016

               On Defendant’s Second Motion for Postconviction Relief.
                          SUMMARILY DISMISSED.

                                         ORDER
John W. Downs, Esquire, Deputy Attorney General, Department of Justice,
Wilmington, Delaware, Attorney for the State.

Joseph Dickinson, James T. Vaughn Correctional Center, Smyrna,
Delaware, pro se.

COOCH, R.J.

     This 15th day of February, 2016, upon consideration of Defendant’s
Second Motion for Postconviction Relief, it appears to the Court that:

          1.      On September 18, 2009, Defendant Joseph Dickinson was
                  found guilty after a trial of Attempted Robbery First Degree;
                  Possession of a Firearm During the Commission of a Felony;
                  Burglary Second Degree; Conspiracy Second Degree; and
                  Possession of a Destructive Weapon.1 Defendant was deemed
                  to be a habitual offender and sentenced to life imprisonment for
                  his Attempted Robbery First Degree conviction, plus eight

1
    Verdict Sheet, D.I. 36 (Sept. 16, 2009).
              years at Level V for his other convictions.2 On December 8,
              2010, Defendant’s conviction was upheld by the Delaware
              Supreme Court.3

       2.     On January 21, 2012, Defendant, through counsel, filed his
              First Motion for Postconviction Relief. In his First Motion
              Defendant argued that ineffective trial counsel and due process
              violations resulted in an unfair trial.4 However, Defendant’s
              First Motion was denied by this Court on the merits on August
              17, 2012. 5 Defendant, again through counsel, appealed this
              Court’s denial of his First Motion to the Delaware Supreme
              Court.6 The Delaware Supreme Court affirmed this Court’s
              decision.7

       3.     On November 12, 2015, Defendant, acting pro se, filed a
              Second Motion for Postconviction Relief. Defendant’s Second
              Motion only challenges his conviction of Attempted Robbery
              First Degree. Defendant now claims that his right to due
              process was violated because his indictment was “facially
              defective.” 8 Defendant asserts that the indictment was facially
              defective because “[t]he term ‘[u]nknown [v]ictim’ cannot be
              used to replace the name of a person sworn to be the victim.” 9

       4.     Defendant’s Second Motion is controlled by Superior Court
              Criminal Rule 61. 10 Before addressing the merits of this



2
  Sentencing Order, D.I. 45 (Jan. 4, 2010).
3
  Dickinson v. State, 8 A.3d 1166, 1168 (Del. 2010) (en banc) (holding this Court was not
required to give sua sponte an accomplice “level of liability” instruction).
4
  State v. Dickinson, 2012 WL 3573943, at* 1 (Del. Super. Aug. 17, 2012).
5
  State v. Dickinson, 2012 WL 3573943, at* 1 (Del. Super. Aug. 17, 2012).
6
  Dickinson v. State, Slip Opinion, 2013 WL 1296263, at *1 (Del. Mar. 28, 2013)
(TABLE).
7
  Dickinson v. State, Slip Opinion, 2013 WL 1296263, at *1 (Del. Mar. 28, 2013)
(TABLE).
8
  Def.’s Second Mot. for Postconviction Relief, at 10-11 (Nov. 12, 2015).
9
  Id. at 11. Defendant is relying on Walton v. State, 821 A.2d 871, 871 (Del. 2003) which
states, “Robbery requires the existence of a named victim as a material element” in
Westlaw Headnote three. However, Walton, and the cases it cites, involve the crime of
Robbery. Defendant was convicted of Attempted Robbery.
10
   Super. Ct. Crim. R. 61.
                                           2
               Second Motion, the Court must address any procedural
               requirements. 11

       5.      A motion for postconviction relief can be procedurally barred
               for time limitations, successive motions, procedural defaults,
               and former adjudications. 12 If a procedural bar exists, the Court
               will not consider the merits of the postconviction claim unless
               the Defendant can show that, pursuant to Rule 61(d)(2), the
               procedural bars are inapplicable.

       6.      Rule 61(d)(2) provides for consideration of otherwise
               procedurally barred claims in two different situations. First,
               when a defendant pleads with particularity that there is new
               evidence that creates a strong inference that the defendant is
               actually innocent. 13 Second, when the defendant pleads with
               particularity that a new rule of constitutional law that has been
               made to apply retroactively on collateral review by the United
               States Supreme Court or the Delaware Supreme Court renders
               the defendant’s conviction or death sentence invalid.14

       7.      Defendant’s Second Motion is procedurally barred for two
               reasons. First, Defendant’s Second Motion is time barred
               pursuant to Rule 61(i)(1). 15 Defendant filed more than 1 year
               after his judgment of conviction became final. Defendant’s
               judgment of conviction became final on December 8, 2010. 16
               Defendant filed this Motion on November 12, 2015, almost five
               years later.

       8.      Defendant’s Second Motion is also barred because it is a
               successive motion. Rule 61(i)(2) states, “No second or
               subsequent motion is permitted under this Rule unless the second
               or subsequent motion satisfies the pleading requirements in” Rule
               61(d)(2). Defendant has failed to satisfy those pleading
11
   Younger v. State, 580 A.2d 552, 554 (Del. 1990).
12
   Super. Ct. Crim. R. 61(i)(1)-(4).
13
   Super. Ct. Crim. R. 61(d)(2)(i).
14
   Super. Ct. Crim. R. 61(d)(2)(ii).
15
   See Super. Ct. Crim. R. 61(i)(1) (barring postconviction motions filed more than 1 year
after judgment of conviction is final).
16
   Felton v. State, 2008 WL 308231, at* 2 (Del. Feb. 1, 2008) (TABLE) (measuring the
start of the filing period for a Rule 61 motion from the date the direct Supreme Court
mandate was issued and direct appeal process concluded).
                                            3
            requirements. Defendant has not plead with any particularity that
            new evidence exists to create a strong inference that he is actually
            innocent. Nor has Defendant asserted any new rule of
            constitutional law has been made to apply retroactively to cases
            on collateral view and renders his conviction invalid.
Therefore, Defendant’s Second Motion is SUMMARILY DISMISSED.

      IT IS SO ORDERED.

                                                 ______________________
                                                   Richard R. Cooch, R.J.

oc:   Prothonotary
cc:   Investigative Services




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