IN THE SUPERIOR COURT OF THE STATE OF DELAWARE

STATE OF DELAWARE, )
)

)

v. ) Case ID No.: 0304014538

)

)

TERVAUGHN C. STURGIS, )
)

Defendant. )

ORDER

Submitted: August 29, 2018
Decided: November 19, 2018

Upon Consideration of the Comml`ssl'oner ’s Report and Recommendation on
Defena’ant ’s Motionfor Postconvinction Relief
ADOPTED.

Upon Consz`deration of Defendant ’s Appeal from the Commissioner ’s Report and

Recommendation 0n Tervaughn C. Sturgis ’s Motionfor Postconviction Reliejf
DENIED.

Tervaughn C. Sturgis. Pro se.

Sonia Augusthy, Esquire, Deputy Attorney General, Department of Justice,
Wilmington, Delaware. Attorneyfor the State.

MEDINILLA, J.

AND NOW TO WIT, this 19th day of November, 2018, upon consideration
of Defendant Tervaughn C. Sturgis (“Defendant”)’s July 15, 2018 Motion for
Postconviction Relief (“Motion”), the Commissioner’s August 20, 2018 Report and
Recommendation that Defendant’s Motion for Postconviction Relief Should Be
Summarily Dismissed, Defendant’s August 28, 2018 Motion for Objection to
Commissioner’s Recommendation (“Objection”), the sentence imposed upon
Defendant, and the record in this case, it appears to the Court that:

1. Over fifteen years ago, Defendant pled guilty to Robbery in the First
Degree on November 4, 2003. He agreed to immediate sentencing and Was
sentenced to 20 years at Supervision Level V, followed by one year at Supervision
Level IV suspended after serving 6 months, for 6 months Supervision Level III.l

2. On July 20, 2018, Defendant untimely filed this Motion for
Postconviction Relief,2 and argues both ineffective assistance of counsel and illegal
sentence as his bases for relief.3 Specifically, he argues that: (1) his counsel “Was
ineffective When “he failed to challenge the indictment under the circumstances
Which rendered his assistance as an underminding [sic] performance both at pretrial,

trial, and appellate stages in violation of Defendant’s due process rights to the U.S.

 

l Sentencing Order, State v. Tervaughn C. Sturgis, ID No. 0304014538 (Del. Super. Nov. 18,
2003).

2 D.I. #40 (July 20, 2018) [hereinafter Def. Rule 61 Mot.].

3 See generally id.

Const. Amend. 6 and 14 Rights;” (2) his counsel Was “ineffective not to challenge
[the] fundamental fact” that “property Was simple ‘U.S. currency’ and not ‘property’
as the indictment indicates;” (3) his counsel “could or should have moved to
suppress the indictment to challenge the information ‘necessary to finding of
probable cause;”’ and (4) the “Trial Court’s sentencing Defendant to the robbery
[First] count is a sentence that the judgment of conviction did not authorize.”4

3. The Court referred Defendant’s Motion to a Superior Court
Commissioner for proposed findings of fact and conclusions of laW.5 On August 20,
2018, the Commissioner issued a report recommending that Defendant’s Motion for
Postconviction Relief should be summarily dismissed.6 The Commissioner outlined
the various procedural bars to Defendant’s Motion, and further determined his
arguments did not meet any exceptions to these procedural bars.7 The Commissioner
found that Defendant’s Motion_filed more than fourteen years after the judgment
of conviction became final_Was procedurally barred under Rule 6l(i)(l) as

untimely, Waived under Rule 61(i)(3), and improperly raised under Rule 6l(i)(4)

 

4 Def. Rule 61 Mot., at 8-12.
5 See 10 Del. C. § 512(b)(1)(b) (2013 & Supp. 2016); DEL. SUPER. CT. CRIM. R. 62(a)(5).
6 See D.I. #47 (Del. Super. Aug. 20, 2018) [hereinafter Comm’r Report].

71¢1.1111.

where Defendant had thrice previously and unsuccessfully challenged the legality of
his sentence.8

4. Further, the Commissioner addressed Defendant’s argument that his
claims were not barred under Rule 61(i)(5). The Commissioner found that
Defendant was citing an incorrect version of Rule 61(i)(5).9 The Commissioner then
analyzed Defendant’s claims under the correct version of Rule 61(i)(5) and found
that Defendant did not “establish an exception to the procedural bars[]” under Rule
61(i)(5) and Rule 6l(d)(i) and (ii) because he was not convicted at a trial, he “has
not set forth any new evidence or facts demonstrating that he is innocent of the acts
giving rise to the conviction, nor has he asserted that a new rule of constitutional law
affects his conviction.”m The Commissioner also found that Defendant did not

establish “cause” or “prejudice” under Rule 61(i)(3) to overcome its procedural bar

 

8 Comm’r Report 1111 6-8. First, the Commissioner found that Defendant’s Motion was untimely
and thus is barred under Rule 61(i)(1) because it was filed more than fourteen years after the
judgment of conviction became final. Additionally, the Commissioner found that Defendant’s
ineffective assistance of counsel claims were subject to the procedural timeliness bar under Rule
61(i)(1). The Commissioner found that Defendant had previously adjudicated the legality of his
sentence in at least three motions to modify his sentence; all denied. Further, Defendant’s
challenge regarding discrepancies between the language of the lndictment and the Affidavit of
Probable Cause was not previously raised before the Court. Therefore, the Commissioner found
that the legality of his sentence should not be reconsidered as previously adjudicated under Rule
61(i)(4), and any argument regarding the language of the lndictment was deemed waived under
Rule 61(i)(3).

9161.119.

1014 1110.

because he entered into a valid guilty plea and his statements were presumed truthful
during his guilty plea colloquy to the Court.ll

5. Defendant filed this Motion captioned “Obj ection” on August 25, 2018,
which this Court accepts as an “Appeal from Commissioner’s Findings of Fact and
Recommendation.”12 Defendant re-argues that his claim is not procedurally barred,
again citing to an older version of Rule 61 .13 Defendant also objects to the
Commissioner’s August 17, 2018 denial of his Motion for Appointment of
Counsel.14 In his Objection, Defendant requests that the rest of his Level V sentence
be “dismissed”, or in the altemative, that this court consider this “petition” under
Superior Court Criminal Rule 35(a) as a motion to reduce or modify his sentence as
an illegal sentence.15

6. Under Delaware Superior Court Rule 62(a)(5), the Court may refer to

a Superior Court Commissioner case-dispositive motions, including postconviction

 

ll Comm’r Report 11 11 (citing Moajica v. Stale, 2009 WL 2426675 (Del. 2009) (citing Miller v.
State, 840 A.2d 1229, 1232 (Del. 2003)); Wl`ndsor v. Slate, 2015 WL 5679751 (Del. Sept. 25,
2015) (holding that absent clear and convincing evidence to the contrary, defendant is bound by
his sworn statements). See also, State v. Brown, 2010 WL 8250799, at *3 (Del. Super., Apr. 14,
2010) (citing Somervl`lle v. State, 703 A.2d 629 (Del. 1997))).

12 DEL SUPER. CT. CRIM. R. 62(a)(5)(ii).
13 D.I. #48 (Del. Super. Nov. 28, 2018) [hereinafter Def. Objection].

14 Id. at 4. Defendant filed a Motion for Appointment of Counsel on July 15, 2018. On August
16, 2018, the Commissioner denied Defendant’s Motion for Appointment of Counsel.

15 Id. at 5-6.

relief motions, and the Commissioner must submit “proposed findings of fact and
recommendations for the disposition, by a judge, of any such matter.”16 A “party
may serve and file written objections to the Commissioner’s order which set forth
with particularity the basis for the objections[]” within ten days after the
Commissioner issues her report.17 The Court conducts a de novo review “of those
portions of the report or specified proposed findings or recommendations to which
an objection is made.”18 A judge “may accept, reject or modify, in whole or in part,
the findings of fact or recommendations made by the Commissioner.”19 Defendant
filed a timely objection to the Commissioner’s Report on August 28, 2018, and the
Court will conduct a de novo review.20

7. The Court first addresses whether there are any procedural bars to the

Motion before considering the merits of the claim.21 By addressing the merits of a

 

16 DEL. SuPER. CT. CRIM. R. 62(a)(5).

17 DEL. SUPER. CT. CRIM. R. 62(a)(5)(ii).

18 DEL. SUPER. CT. CRIM. R. 62(a)(5)(iv).

19 Id

20 See generally, Def. Obj ection. Although Defendant’s objection was not entitled “Appeal from
Commissioner’s Findings of Fact and Recommendations” as required under Rule 62(a)(5)(ii),
Defendant asserts he is submitting his “obj ections” pursuant to Rule 62(a)(5)(ii).

21 See, e.g., Ayers v. State, 802 A.2d 278, 281 (Del. 2002); Bailey v. State, 588 A.2d 1121, 1127

(Del. 1991); Younger v. State, 580 A.2d 552, 554 (Del. 1990) (citing Harris v. Reea', 489 U.S. 255
(1989)).

case that does not meet procedural requirements, it effectively renders the Court’s
procedural rules meaningless.22 A claim may be summarily dismissed if it plainly
appears from the motion and the record that the movant is not entitled to relief.23

8. Under Rule 61(i)(1), a postconvinction relief motion “may not be filed
more than one year after the judgment of conviction is final. ...”2‘1 Defendant was
sentenced on November 4, 2003 and the sentence became final thirty days after the
sentence was imposed.25 Defendant filed this Motion on July 20, 2018, more than
fourteen years after the sentence became final. Defendant is incorrect that his
ineffective assistance of counsel claims are not time barred.26 With this time gap,
clearly his claims are subject to the procedural bar of Rule 61(i)(1) and therefore
Defendant’s Motion for Postconvinction Relief, including for ineffective assistance

of counsel, is untimely.27

 

22 See State v. Chao, 2006 WL 2788180, at *5 (Del. Super. Sept. 25, 2006) (“To protect the
integrity of the procedural rules, the Court should not consider the merits of a postconviction claim
where a procedural bar exists.”); State v. Jones, 2002 WL 31028584, at *2 (Del. Super. Sept. 10,
2002) (citing State v. Gattis, 1995 WL 790961, at *3 (Del. Super. Dec. 28, 1995)) (same).

23 DEL. SUPER. CT. CRIM. R. 61(d)(5).

24 DEL. SUPER. CT. CRIM. R. 61(i)(1).

25 DEL. SUPER. CT. CRIM. R. 61(m)(1).

26 Def. Rule 61 Mot., at 2-3.

27 Younger, 580 A.2d at 555 (finding ineffective assistance of counsel claim untimely and
procedurally barred under Rule 61(i)(1)).

9. Defendant next argues that his claims are not barred under Rule 61(i)(3)
because “[a] meritorious claim of ineffectiveness constitutes ‘cause’ if petitioner
establishes the deficient performance and prejudice prongs of Strickland. . ..”28
Under Rule 61(i)(3), a ground for relief that was not previously asserted in an earlier
proceeding is barred “unless the movant shows cause for relief from the procedural
default and prejudice from violation of the movant’s rights.”29 Defendant did not
specifically object to the Commissioner’s finding that his claim was barred under
Rule 61(i)(3), but again raises the ineffective assistance of counsel argument
focusing for the first time on alleged discrepancies between language in the
lndictment and the Affidavit of Probable Cause.30 A defendant’s “voluntary guilty
plea constitutes a waiver of any alleged errors or defects occurring prior to the entry
of the plea.”31 Therefore, Defendant’s guilty plea, which is not challenged, waived

the right to challenge any alleged errors prior to the guilty plea entry, including the

wording of the lndictment. Thus, Defendant is also barred under Rule 61(i)(3).

 

28 Def. Rule 61 Mot., at 5.
29 DEL. SUPER. CT. CRIM. R. 61(i)(3).
30 Def. Rule 61 Mot., at 2-5.

31 Johnson v. State, 962 A.2d 917, 2008 WL 4830853, at *1 (Del. Nov. 7, 2008) (TABLE) (citing
Miller, 840 A.2d at 1232).

10. Under Rule 61(i)(4), a ground for relief is also barred if it was formerly
adjudicated, which includes in the proceedings leading to the judgment of
conviction, in an appeal, in a postconvinction proceeding, or in a federal habeas.32
Defendant does not address the Commissioner’s finding that his claim is barred
under Rule 61(i)(4).33 Thus, the Court accepts the Commissioner’s finding that his
claim is also barred under Rule 61(i)(4).

11. Finally, Defendant asserts in his Motion that his claims are not barred
under Rule 61(i)(5).34 The Commissioner properly found that Defendant was
referencing an older version of Rule 61(i)(5).35 Under the applicable Rule 61(i)(5) in
effect at the time of the filing, Defendant’s Motion did not satisfy any exception.
Therefore, Defendant’s objection regarding the applicability of Rule 61(i)(5) is
without merit.36

12. The version of Rule 61(i)(5) in effect at the time of Defendant’s filing

states that “bars to relief in paragraphs (1), (2), (3), an (4) of this subdivision shall

 

32 DEL. SUPER. CT. CRIM. R. 61(i)(4).

33 Def. Rule 61 Mot., at 11.

34 Def. Rule 61 Mot., at 3-4.

33 Comm’r Report 11 9. Defendant cites to the “colorable claim” or “miscarriage of justice”
language found in the previous version of Rule 61. The current and applicable version of Rule

61 became effective on April 6, 2017. Defendant filed his Motion for Postconviction Relief on
July 20, 2018,

36 Def. Objection, at 2-4.

not apply either to a claim that the court lacked jurisdiction or to a claim that satisfies
the pleading requirements of paragraphs (2)(i) or (2)(ii) of subdivision (d) of this
rule.”37 Defendant does not argue that the Court lacked jurisdiction,38 that “new
evidence exists that creates a strong inference” of actual innocence,39 or 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 [his] case
and renders [his] conviction. . .invalid.”40 Defendant instead re-alleges constitutional
violations of ineffective assistance of counsel and that his sentence was illegal. As
such, this untimely Rule 61 motion is procedurally barred by Rules 61(i)(1), (i)(3),
and (i)(4), and does not meet an exception under Rule 61(i)(5).

13. Defendant also objects to the Commissioner’s denial of the

appointment of counsel.41 Defendant filed a Motion for Appointment of Counsel on

 

37 DEL. SUPER. CT. CRIM. R. 61(i)(5) (2018). The pleading requirements under Rule 61(d)(2)(i)
and (2)(ii) include pleading with particularity that new evidence exists that creates a strong
inference that Defendant is actually innocent or pleading with particularity that a new rule of
constitutional law applies retroactively to Defendant’s case.

38 DEL. SUPER. CT. CRIM. R. 61(i)(5).

39 DEL. SUPER. CT. CRIM. R. 61(d)(2)(i).

40 DEL. SUPER. CT. CRlM. R. 61(d)(2)(ii).

41 Def. Objection, at 4.

10

July 20, 2018.42 The Motion was denied on August 17, 2018,43 and Defendant filed
his Objection on August 28, 2018.44 Under Rule 62(a)(4)(ii), a party may file a
written objection to a Commissioner’s order within 10 days after the filing of the
order, and the written objections “shall be entitled ‘Motion for Reconsideration of
Commissioner’s Order.”’45 Even construing Defendant’s Objection as a Motion for
Reconsideration of Commissioner’s Order, the Motion for Appointment of Counsel
was properly denied by the Commissioner. Defendant’s Motion for Postconviction
Relief was untimely, Defendant did not seek appellate review, and Defendant has
not provided the Court with “specific exceptional circumstances” that warrant the
appointment of counsel.46 Therefore, his appeal of the denial of the appointment of
counsel is denied.

14. Lastly, Defendant requests in his Objection that this petition be
construed as a Rule 35(a) motion, as an “illegal sentence...broad enough to cover

this petition.”47 Defendant has previously asked this Court for relief under Rule 35

 

42 D.I. #41 (Del. Super. July 20, 2018) [hereinafter Def. Mot. Appointment of Counsel].

43 D.I. #46 (Del. Super. Aug. 17, 2018) [hereinafter Comm’r Order Denying Mot. for Appointment
of Counsel].

44 See generally, Def. Objection,
45 DEL. suPER. CT. CRIM. R. 62(3)(4)(ii).
46 DEL. SUPER. CT. CRIM. R. 61(e)(3).

47 Def. Objection, at 5-6.

11

on three separate occasions.48 Under Rule 35(a), the Court “may correct an illegal
sentence at any time.”49 Rule 35(a) applies in limited situations where the sentence
imposed: exceeds its statutorily-authorized limits, violates double jeopardy, “is
ambiguous with respect to the time and manner in which it is to be served, is
internally contradictory, omits a term required to be imposed by statute, is uncertain
as to the substance of the sentence, or is a sentence which the judgment of conviction
did not authoriZe.”50

15. Under Rule 35(a), the “narrow filnction” is to correct illegal sentences,
“not to re-examine errors occurring at the trial or other proceedings prior to the
imposition of sentence.”31 Defendant did not assert in his Motion or Obj ection that
his sentence exceeds the statutory maximum, is ambiguous or contradictory, or
violates double jeopardy and he does not establish a claim for relief under Rule 35(a).

16. The Court has reviewed Defendant’s Motion, the Commissioner’s

Report, Defendant’s Objection, and the record in this case. After careful

consideration and de novo review, the Court ADOPTS the Commissioner’s Report

 

48 D.I. #30 (Del. Super. June 22, 2012); D.I. #34 (Del. Super. Apr. 24, 2013); D.I. #38 (Del. Super.
Jan. 26, 2017).
49 DEL. SUPER. CT. CRIM. R. 35(a). Defendant’s Motion was filed on August 10, 2018.

30 Brittingham v. State, 705 A.2d 577, 578 (Del. 1998) (citations omitted). See, e.g., Ellerbe v.
State, 155 A.3d 1283, 2017 WL 462144, at *1 (Del. Feb. 2, 2017) (TABLE).

51 Brmingham, 705 A.2d at 578 (quoting Hill v. United smzes, 368 U.s. 424, 430 (1962)).

12

and Recommendation for the reasons stated above and in the Commissioner’s
Report. Defendant’s Appeal from the Commissioner’s Finding of Fact and
Recommendations is DENIED.

IT IS SO ORDERED.

 

Lvivian L. Medinina, Judge

oc: Prothonotary
cc: Defendant

Department of Justice
Investigative Services Office

13

