IN THE SUPERIOR COURT OF THE STATE OF DELAWARE

STATE OF DELAWARE
V. I.D. NO. 1705()13238

RAYMOND S. W l NCHESTER,

V\/\/V\./\/V

Defendant.
Submitted: September 21, 2018
Decided: October 4, 2018

Upon Defena'ant ’s Motion for Postconviction Relief
SUMMARILY DISMISSED.

Upon Defendant ’S Motion for Appointment of Counsel
DENIED.

ORDER

Monil D. Amin, Esquire, Deputy Attorney General, Department of Justice, 820 N.
French St., Wilmington, Delaware, Attorney for the State.

Raymond S. Winchester, pro se, Wilmington, DE.

WHARTON, J.

This 4th day of October, 2018, upon consideration of Defendant’s Motion
for Postconviction Relief, Motion for Appointment of Counsel, and the record in
this matter, it appears to the Court that:

l. Defendant Raymond S. Winchester (“Winchester”) was indicted by the
Grand Jury on the charges of assault second degree, terroristic threatening and
disorderly conduct.l After signing a Robinson plea agreement to assault second
degree on November 14, 2017, Winchester declined to enter that plea on that date.2
Winchester did enter such a plea after executing a somewhat different plea
agreement on November 16, 2017.3 In both plea offers, the State agreed not to
pursue habitual offender sentencing. On February 2, 2018, consistent with the range
of sentencing terms agreed upon in the plea agreement, he was sentenced to Six years
of incarceration suspended after three years, followed by decreasing levels of
supervision4 Winchester’s untimely appeal of his conviction and sentence to the
Delaware Supreme Court was dismissed.5 He also unsuccessfully sought a sentence

modification6

 

lD.I. 6.

2 See Robl'nson v. State, 219 A.2d 279 (1972).

3 D.I. 9.

4D.I. 13.

5 Winchester v. State, 2018 WL 4212138 (Del. Sept. 4, 2018).
6D.I. 19.

2. On September 14, 2018, Winchester filed this Motion for Postconviction
Relief (“Motion”),7 and an accompanying Motion for Appointment of Counsel.8 As
best the Court can discem, Winchester raises three apparently interrelated ineffective
assistance claims for relief in the Motion: l) counsel failed to provide him with
medical records from the victim’s hospital treatment following the assault which
would have showed that the victim had a preexisting injury; 2) counsel allowed him
to enter a Robz'nson plea to a plea agreement that had been rejected; and 3) after
realizing that the victim’s injury was preexisting, counsel should have secured a more
appropriate plea such as offensive touching or assault third degree.9 He also claims
that the restitution he was ordered to pay - $4,310.23 _ was excessive since the
victim’s injury was preexisting 10

3. Before addressing the merits of a defendant’s motion for postconviction
relief, the Court must first apply the procedural bars of Superior Court Criminal Rule
61(i).ll If a procedural bar exists, then the Court will not consider the merits of the
postconviction claim.12

4. Under Delaware Superior Court Rules of Criminal Procedure, a motion

for postconviction relief can be barred because of time limitations, repetitiveness,

 

7D.I. 21.

8 D.I. 22.

9D.I. 21.

lOIa’.

'1 Younger v. State, 580 A.2d 552, 554 (Del. 1990).
‘Zld.

procedural default, or former adjudication13 The bars to relief do not apply either
to a claim that the court lacked jurisdiction or to a claim that pleads with
particularity that new evidence exists that creates a strong inference of actual
innocence14 or that a new retroactively applied rule of constitutional law renders
the conviction invalid.15

5. In applying the procedural bars of Rule 6l(i), it is clear that the motion
is a timely first post-conviction relief motion raising claims of ineffective
assistance of counsel, and therefore, those claims are not barred. The restitution
claim is barred, however, since it was previously adjudicated in Winchester’s
sentence modification motion.16

6. Summary dismissal is appropriate if it plainly appears from the motion
for postconviction relief and the record of prior proceedings in the case that the
movant is not entitled to relief.17

7. Here, Winchester entered a Robinson plea after he had previously
rejected a similar plea offer two days earlier. The most significant difference
between the two plea offers dealt with limitations on the recommendations the
parties would offer at sentencing. The mere fact that Winchester changed his mind

about accepting the plea offer on the day of trial provides him with no basis for

 

13 Super. Ct. Crim. R. 6 l (i)( l )-(4).

14 Super. Ct. Crim. R. 61(i)(5).

15 Super. Ct. Crim. R. 6l(d)(2)(i) and (ii).
16See D.I. 15, 19.

11 Super. Ct. Crim. R. 6 l (d)(5).

relief. Winchester appears to be under the misimpression that the because the
earlier plea was rejected, the plea offer he accepted is somehow tainted. But it was
he who rejected the earlier plea, not some unnamed authority, and it was he who
was free to accept it, or any modified version of it, later.

8. Some understanding of the basic facts of the case is necessary give
context to Winchester’s ineffective assistance of counsel claims. Winchester was
charged with assaulting a DART bus driver who was driving the bus on which
Winchester was riding. As a result of the assault, the victim was taken to the
hospital where it was discovered that he had a brain tumor.18 This tumor is the
preexisting injury Winchester references in the Motion. The tumor is not the
injury Winchester is alleged to have caused when he assaulted the bus driver. ln
fact, it is irrelevant to the charge. If the victim had no tumor, Winchester still
would have been charged with assault second degree. Further, Winchester was not
charged with causing the victim serious physical injury. Rather he was charged
with causing only physical injury to a public transit operator acting in the lawful
performance of his duty, which constitutes assault second degree under ll Del. C.
§ 612(a)(3).19 Because Winchester misapprehends both the facts and the law as it
relates to his plea, the Court finds it unnecessary to engage in the standard two

pronged ineffective assistance of counsel analysis.20 There is simply no purpose to

 

11 Fortunately, the tumor was not malignant.
19D.I. 6.
20See Strickland v. Washington, 466 U.S. 668 (1984).

5

be served by conducting such an analysis where the motion is supported by
demonstrably incorrect statements of fact and law. Accordingly, the Court finds
that it plainly appears from the Motion and the record in this case that Winchester
is not entitled to relief, Nor is Winchester entitled to counsel since he was not
convicted at trial of a class A, B, or C felony.21

THEREFORE, since it plainly appears from Motion for Postconviction
Relief and the record in this case that Winchester is not entitled to relief, the Motion
for Postconviction Relief is SUMl\/LARILY DISMISSED. The Motion for

Appointment of Counsel is DENIED.

IT IS SO ORDERED. g l

Fer is W. Vmiarton J

oc: Prothonotary
cc: lnvestigative Services

 

21 Super. Ct. Crim. R. 6 l (e)(2).

