IN THE SUPREME COURT OF THE STATE OF DELAWARE

STEVEN W. KRAFCHICK, §
§
Defendant Below- § No. 268, 2014
Appellant, §
§
v. § Court Below-Superior Court
§ of the State of De1aware,
STATE OF DELAWARE, § in and for New Castle County
§ Cr. ID No. 0101010946
Plaintiff Be1ow- §
Appellee. §

Submitted: July 18, 2014
Decided: August 28, 2014

Before HOLLAND, RlDGELY, and VAL]HURA, Justices.
0  D E R

This 28th day of August 2014, upon consideration of the appellant’s opening
brief, the appel1ee’s motion to affirm, and the record be1ow, it appears to the Court
that:

(1) The appel1ant, Steven W. Krafchick, filed this appeal from the
Superior Comt’s denial of his third motion for postconviction relief. The State of
De1aware has filed a motion to affirm the judgment below on the ground that it is
manifest on the face of Krafchick’s opening brief that his appeal is without merit.'

We agree and affirrn.

l Supr. Ct. R. 25(a). The State acknowledges that the motion to affirm was filed more than ten
days after the June 30, 2014 date on the certificate of service with the opening brief, but indicates

(2) The record reflects that, in 2001, Krafchick was indicted for Murder
in the First Degree and other offenses arising out of the stabbing death of his wife.

Trial began on February 5, 2002. On February l3, 2002, Krafchick accepted a

guilty plea for Murder in the Second Degree and Possession of a Deadly Weapon'

During Commission of a Felony. ln presenting the plea agreement to the Superior
Court, Krafchick’s counsel stated that the defense had requested the plea several
weeks earlier, the State offered the plea that moming, and Krafchick had discussed
the plea with his counsel. Krafchick stated under oath that he had fully discussed
the plea agreement with his counsel. After accepting Krafchick’s guilty plea, the
Superior Court immediately sentenced Krafchick to forty years of Level 5
incarceration, followed by probation.

(3) Krafchick filed a direct appeal to this Court, which remanded the
matter for the Superior Court to set forth its reasons for imposing a sentence that
exceeded Delaware Sentencing Accountability Commission Guidelines. The
Superior Court set forth its reasons for the sentence and this Court affirmed the

Superior Court’s judgment on May 8, 2003.2

that the State did not receive the opening brief until July 8, 2014. This Court received and
docketed the opening brief in this appeal on July 8, 2014. To the extent the motion to affirm is
untime1y, this Court may affirm the trial court’s judgment sua sponte in accordance with
Supreme Court Rule 25(b). Marvel v. State, 2009 WL 2158107, at *l n.2 (Del. July 21, 2009).

2 Krafchick v. s¢a¢e, 2003 wL 21054791 (1)¢1. May s, 2003).

2

(4) Krafchick filed his first motion for postconviction relief on May 7,
2004 and amended that motion on July 2, 2004. Krafchick raised ineffective
assistance of counsel claims, including a claim that the ineffectiveness of his
counsel made it impossible for him to have time to consider and understand the
plea offer he accepted. In the affidavit submitted in response to the motion,
Krafchick’s counsel stated that the State offered the plea the day before it was
entered. The State’s opposition to Krafchick’s postconviction motion indicated
that the State recalled offering the plea the day before it was entered. In his reply
to the State’s opposition, Krafchick pointed out the discrepancy between the
plea/sentencing hearing, at which Krafchick’s counsel indicated that the plea was
offered that morning, and the affidavit of Krafchick’s counsel, which stated that
the plea was offered the day before the plea/sentencing hearing, The Superior
Court considered the merits of Krafchick’s ineffective assistance of counsel claims,
concluded that he had not met the Strz°ckland v. Washz`ngtoni standard, and denied
his motion for postconviction relief.‘ This Court affirmed the Superior Court’s

judgment.$

3 466 U.s. 663 (1934).
4 State v. Krafchz'ck, 2005 WL 697940, at *5 (Del. Super. Mar. 8, 2005).

5 Krafchick v. s¢are, 2006 WL 141044 (Del. Jan. 17, 2006).

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(5) On March 22, 2006, Krafchick filed his second motion for
postconviction relief. The Superior Court found that Krafchick’s claims were
procedurally barred under Superior Court Criminal Rule 61 ("Rule 61") and that
Krafchick had not overcome the procedural hurdles. This Court affirmed the
judgment of the Superior Court.‘ On August 10, 2010, the United States District
Court for the District of Delaware denied Krafchick’s petition for a writ of habeas
corpus.’

(6) On August 28, 2013, Krafchick filed a motion for appointment of
counsel and his third motion for postconviction relief. Krafchick claimed he
overcame the Rule 61 procedural bars because he was denied counsel in his first
postconviction proceedings and had raised a colorable claim of ineffective
assistance of counsel in those proceedings. The Superior Court denied Krafchick’s
motion for appointment of counsel on December l3, 2013, On May l, 2014, the
Superior Court found Krafchick’s claims were procedurally barred and that

Krafchick had not overcome the procedural hurdles. This appeal followed.

‘ Krafchick v. sra:e, 2007 wL 2010340 (Del. Apr. 26, 2007).

7 Krafchick v. Phelps, 2010 WL 3169366 (D. Del. Aug. 10, 2010).

4

(7) We review the Superior Court’s denial of postconviction relief for
abuse of discretion and questions of law de novo.“ The procedural requirements of
Rule 61 must be considered before any substantive issues are addressed.°

(8) On appeal, Krafchick’s claims may be summarized as follows: (i) the
Superior Court abused its discretion by failing to hold an evidentiary hearing on
the differences between his counsel’s statements at the 2002 plea/sentencing
hearing and in his 2004 affidavit regarding the timing of the plea offer; (ii) his
ineffective assistance of counsel claims should be reviewed in the interest of
justice or because there was a miscarriage of justice due to his trial counsel
committing perjury in his 2004 affidavit; and (iii) the Superior Court should have
appointed counsel to assist him with his ineffective assistance of counsel claim
based on the plea bargaining process. Claims that Krafchick raised below, but
failed to argue in his opening brief are waived.‘°

(9) Krafchick claims the Superior Court erred in failing to hold an

evidentiary hearing, but he did not file a motion for an evidentiary hearing or ask

8 Dawson v. s¢a¢e, 673 A.zd 1136, 1190 (1)¢1. 1996).
9 younger v. s¢a¢e, 580 A.zd 552, 554 (1)61. 1990).

1° Dei. supr. ct R. 14(6)(~/1)(/1)(3); Murphy v. S:are, 632 A.2a 1150, 1152 (Del. 1993).

5

the Superior Court to hold an evidentiary hearing in his third postconviction
motion. Thus, this claim is not properly before the Court."

(10) Krafchick’s ineffective assistance of counsel claims are time-barred,”
repetitive,“ and formerly adjudicated under Rule 61(1)(4)."‘ He has not shown that
review of his claims is warranted in the interest of justice under Rule 61(1)(2)‘5 or
Rule 61(i)(4) " or because there was a miscarriage of justice under Rule 61(1)(5)."
Regardless of whether the plea offer was received on February 13, 2002 as stated
at the plea/sentencing hearing or the day before as indicated in his counsel’s 2004
affidavit, Krafchick stated, under oath, at the plea/sentencing hearing that he did
not have any questions regarding the plea agreement, he was entering a guilty plea

of his own &ee will, and he had fully discussed the matter with his counsel.

11 supr. cr. R. s.

12 Super. Ct. Crim. R. 61(1)(1) (ban'ing motion filed more than three years after judgment of
conviction is final) (arnended in 2005 to reduce filing period to one year).

'3 Super. Ct. Crim. R. 61(i)(2) (barring any ground for relief not asserted in prior postconviction
proceeding).

14 Super. Ct. Crim. R. 6l(i)(4) (barring any ground for relief formerly adjudicated).

11 super c_r. Crim. R. 61(1)(2) (previdirrg drar eiaira rrer previeueiy raised eaa be reviewed 1a
interest of justice).

1‘ super cr. Crim. R. 61(1)(4) (previdirrg that formerly adjudicated eiairrr eaa be reviewed 1a
interest of justice).

17 Super. Ct. Crim. R. 61(1)(5) (providing that barred claims can be reviewed if there is colorable
claim of miscarriage of justice due to constitutional violation that undermined fairness of
proceedings).

Absent clear and convincing evidence to the contrary, Krafchick is bound by those
statements.‘“ Krafchick does not dispute that his counsel had sought a plea offer
for weeks or that he discussed the plea offer with his counsel. Krafchick points out
that his counsel was suspended in 2008 for misconduct in two other cases, but that
does not establish that his counsel was ineffective in the 2002 plea bargaining
process. Thus, the Superior Court did not err in finding Krafchick had failed to
overcome the procedural bars of Rule 6l(i) and in denying Krafchick’s third
motion for postconviction relief.

(l1) Finally, Krafchick has not shown he is entitled to appointment of
counsel. Krafchick relies on his ineffective assistance of counsel claims and his
counsel’s alleged perjury to support his request for counsel. As discussed above,
Krafchick’s ineffective assistance of counsel claims are procedurally barred under
Rule 6l(i) and he has not established that review of those claims is warranted in
the interest of justice or due to a rniscarriage of justice. Under these

circumstances, Krafchick is not entitled to appointment of counsel.

11 somerville u. Srore, 703 A.2d 629, 632 (Del. 1997).

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NOW, THER.EFORE, IT IS ORDERED that motion to affirm is GRANTED

and the judgment of the Superior Court is AFFIRMED.

BY THE COURT:

dea<grlaO/Qe»§»

Justice U

