               IN THE SUPREME COURT OF THE STATE OF DELAWARE

DONALD BIBLE,                            §
                                         §
          Defendant-Below,               §   No. 383, 2014
          Appellant,                     §
                                         §
          v.                             §   Court Below: Superior Court
                                         §   of the State of Delaware,
STATE OF DELAWARE,                       §   in and for Kent County
                                         §   Cr. ID No. 050101534
          Plaintiff-Below,               §
          Appellee.                      §

                             Submitted: October 23, 2014
                             Decided: December 3, 2014

Before STRINE, Chief Justice; HOLLAND and RIDGELY, Justices.

                                     ORDER

          This 3rd day of December 2014, upon consideration of the appellant’s

opening brief, the appellee’s motion to affirm, and the record below, it appears to

the Court that:

          (1)    The appellant, Donald Bible, filed this appeal from the Superior

Court’s denial of his second motion for postconviction relief under Superior Court

Criminal Rule 61 (“Rule 61”). The State of Delaware has filed a motion to affirm

the judgment below on the ground that it is manifest on the face of Bible’s opening

brief that his appeal is without merit.1 We agree and affirm.


1
    Supr. Ct. R. 25(a).
       (2)     On October 2, 2006, Bible pled guilty to Rape in the First Degree,

Rape in the Third Degree as a lesser included offense of Rape in the First Degree,

and Continuous Sexual Abuse of a Child in connection with his sexual abuse of the

twin granddaughters of a friend and roommate. The State entered a nolle prosequi

on the remaining 108 charges and recommended a total Level V sentence of thirty-

six years, including nineteen years of minimum mandatory time. The Superior

Court followed the sentencing recommendation. Bible did not file a direct appeal.

Instead, he filed several unsuccessful motions seeking modification of his sentence

and withdrawal of his guilty plea.

       (3)     On May 19, 2008, Bible filed his first motion for postconviction relief

under Rule 61. Bible claimed that: (i) his counsel withheld a favorable report of a

psychologist consulted by his federal public defender; 2 (2) his counsel provided

ineffective assistance by, among other things, failing to consult with him, explain

the relevant law, or obtain the suppression of his incriminatory statement to federal

authorities; and (iii) his counsel changed the plea agreement without his

knowledge. After receiving the affidavit of Bible’s former counsel and the State’s

response, a Superior Court Commissioner recommended that Bible’s motion be

denied as time-barred Rule 61(i)(1) and meritless. On October 8, 2009, after de


2
 In addition to the state charges, Bible faced federal charges relating to the possession of child
pornography.

                                                2
novo review, the Superior Court adopted the recommendation and report of the

Superior Court Commissioner and denied Bible’s motion for postconviction relief.

          (4)      Bible appealed the denial of this motion.          In his appeal, Bible

contended that his guilty plea was involuntary because the plea agreement was

altered without his knowledge. Bible did not raise the ineffective assistance of

counsel claims he asserted in the Superior Court and those claims were deemed to

be waived.3 This Court concluded that Bible’s involuntary guilty plea claim was

not supported by the transcript of the guilty plea hearing and affirmed the judgment

of the Superior Court.4

          (5)      On July 7, 2014, Bible filed his second motion for postconviction

relief. Bible contended that he had pled a colorable claim of a miscarriage of

justice under Rule 61(i)(5) based upon disciplinary proceedings involving his

former counsel. According to a report and recommendation of the Office of

Disciplinary Counsel (“ODC”) that was attached to a 2012 order suspending

Bible’s former counsel, Bible’s former counsel testified that he was diagnosed with

attention deficit disorder (“ADD”) in 2004 or 2005, became addicted to the

medication prescribed to treat his ADD, and had difficulties managing his



3
    Bible v. State, 2010 WL 2680542, at *1 n.3 (Del. July 7, 2010).
4
    Id. at *1-2.

                                                  3
practice.5 Bible argued that his former counsel’s ADD and prescription addiction

rendered him per se ineffective and that Bible would not have pled guilty had he

known of his former counsel’s ADD and prescription addiction.

         (6)     The Superior Court held that Bible’s claims were belied by his

statements during the guilty plea colloquy and denied his motion for

postconviction relief. This appeal followed.

         (7)     On appeal, Bible argues that he has pled a colorable claim of a

miscarriage of justice under Rule 61(i)(5) based upon the new evidence of his

counsel’s ADD and prescription addiction and that he is therefore entitled to re-

litigation of his previous ineffective assistance of counsel claims. We review the

Superior Court’s denial of postconviction relief for abuse of discretion and

questions of law de novo.6 The procedural requirements of Rule 61 must be

considered before any substantive issues are addressed.7

         (8)     The Rule 61(i)(5) language Bible relies upon was not in effect when

he filed his second postconviction motion on July 7, 2014. Effective June 4, 2014,

Rule 61 provided:




5
    In re Poliquin, 49 A.3d 1115, 1136 (Del. 2012).
6
    Dawson v. State, 673 A.2d 1186, 1190 (Del. 1996).
7
    Younger v. State, 580 A.2d 552, 554 (Del. 1990).

                                                 4
          (2) Second or subsequent postconviction motions. A second or
          subsequent motion under this rule shall be summarily dismissed,
          unless the movant was convicted after a trial and the motion either:

          (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 or death sentence invalid. 8

Under Rule 61(d)(2), summary dismissal of the postconviction motion was

appropriate because it was Bible’s second motion under Rule 61 and Bible was

convicted after a guilty plea, not a trial. We therefore affirm the Superior Court’s

denial of Bible’s second motion for postconviction relief.

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

and the judgment of the Superior Court is AFFIRMED.


                                                 BY THE COURT:
                                                 /s/ Leo E. Strine, Jr.
                                                 Chief Justice




8
    Super. Ct. R. 61(d)(2) (2014).

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