IN THE SUPERIOR COURT OF THE STATE OF DELAWARE
STATE OF DELAWARE
v. I.D. No. 1605016488

JERMAINE L. CARTER,

Defendant.

\_/\_/\_/\/\/\./\/

Submitted: August 6, 2018
Decided: August l7, 2018

ORDER SUMMARILY DISMISSING JERMAINE L. CARTER’S
MOTION FOR POSTCONVICTION RELIEF

This 17th day of August, 2018, upon consideration of the Motion for
Postconviction Relief filed by Jermaine L. Carter, the record in this matter, and
Superior Court Criminal Rule 61 (“Rule 61”), it appears to the Court that:

l. On January 4, 2017, following a one-day bench trial, this Court found
Carter guilty of Assault in a Detention Facility and immediately sentenced him to
five years at Level V, suspended after two years for 18 months at Level III.l On
February l, 2017, Carter, through counsel, appealed the conviction and sentence.
Carter’s counsel later filed a brief and a motion to WithdraW under Delaware

Supreme Court Rule 26(c), asserting there Were no arguably appealable issues.

 

‘D.I. 16.

2. On June 16, 2017, the DelaWare Supreme Court issued an order
affirming Carter’s conviction.2 The Supreme Court issued its mandate on July 5,
2017.3

3. On August 6, 2018, Carter filed a motion for postconviction relief (the
“Motion”).4 In the Motion, Carter alleges one ground for relief: “unreasonable

5 In support, he states “I never got a copy of the affidavit

search and seizure.”
and/or search or arrest Warrant.”6 Carter also attached to his Motion a
memorandum of law. The argument contained in that memorandum of laW,
however, does not relate to Carter’s current case. Rather, the memorandum cites
two grounds for relief: one regarding Withdrawal of Carter’s guilty plea and one
regarding counsel’S “failure to investigate and develop mitigating evidence that

Would have supported defendant’s case during his sentencing.”7 As Carter did not

plead guilty in this case, the first argument appears unrelated to this matter or the

 

2 Carter v. State, 2017 WL 2628161 (Del. Jun. 16, 2017).

3 D.1.26.

4 Carter previously filed a motion for postconviction relief While his direct appeal Was pending.
This Court summarily dismissed that motion on April 19, 2017, because it Was not ripe under
Rule 61(b)(4). The Court treats Carter’s current motion as his first motion for postconviction
relief in this case.

5 D.1.27.

61d.

7 Ia'., Memo. of Law at 4.

ground asserted in the Motion. Similarly, Carter’s argument regarding sentencing
refers to a sentence imposed on November 6, 1987.8

4. Under Superior Court Criminal Rule 61(d)((5), this Court may dismiss
summarily a motion for postconviction relief if “it plainly appears from the motion
. . . and the record of prior proceedings in the case that the movant is not entitled to
relief.”9 One appropriate basis for summary dismissal is an untimely
postconviction motion. Rule 61 imposes a one-year time limitation on motions for
postconviction relief. Under that rule, a motion “may not be filed more than one
year after the judgment of conviction is final . . . .”10 When a defendant files a
direct appeal, as Carter did in this case, a judgment of conviction is final for
purposes of Rule 61 “when the Supreme Court issues a mandate or order finally

determining the case on direct review.”ll

The one-year time limitation does not
apply, however, to a claim that the court lacked jurisdiction or if the defendant
pleads with particularity that (i) new evidence exists creating a strong likelihood
the defendant actually is innocent of the acts underlying the charges of which he

was convicted, or (ii) a new rule of constitutional law, made retroactive to cases on

collateral review, applies to the case and renders the conviction invalid.12

 

8 Id. Carter is serving a life sentence on other charges.
9 Super. Ci. C.rim. R. 61(d)(5).

"‘ super. Cr. Crim. R. 61(i)(1).

'1 super. Ci. Cl~im. R_ 61(1n)(2).

'2 super. C.r. Crim. R. 61(1)(5).

5. The Supreme Court issued its mandate on July 5, 2017, finally
determining Carter’s conviction on direct review. Carter did not file this Motion
until August 6, 2018. Under the plain terms of Rule 61, Carter’s Motion is
untimely and therefore procedurally is barred. Carter has not pleaded specifically
(or even generally) that the bar is not applicable. Because the motion is barred
procedurally, the Court may not consider its merits.

Carter’s Motion for Postconviction Relief therefore SUMMARILY IS

M),@a/

Abi§elil`ivf. `LeGM/, Judge

DISMISSED. IT IS SO ORDERED.

Original to Prothonotary
cc: Marc Petrucci, Deputy Attomey General
Jermaine Carter, pro se (SBI No. 419947)

