Kane v. State

• Court: Supreme Court of Delaware
• Decided: March 14, 2018
• Docket: 569, 2017
• Status: Published

Opinion

IN THE SUPREME COURT OF THE STATE OF DELAWARE

THOMAS F. KANE, § § No. 569, 2017 Defendant Below- § Appellant, § § v. § Court Below—Superior Court § of the State of Delaware STATE OF DELAWARE, § § Cr. ID 0612001862 Plaintiff Below- § Appellees. §

Submitted: January 31, 2018 Decided: March 14, 2018

Before STRINE, Chief Justice; SEITZ and TRAYNOR, Justices.

ORDER

This 14th day of March 2018, upon consideration of the appellant’s

opening brief, the State’s motion to affirm, and the record on appeal, it

appears to the Court that:

(1) The appellant, Thomas F. Kane, filed this appeal from the

Superior Court’s order denying his motion to reopen his criminal conviction

and sentence under Superior Court Civil Rule 60(b). The State has filed a

motion to affirm the Superior Court’s judgment on the ground that it is

manifest on the face of Kane’s opening brief that his appeal is without merit.

We agree and affirm. (2) Kane pled guilty but mentally ill in 2008 to Murder in the First

Degree and other related offenses. In exchange for his plea, Kane avoided a

possible death sentence, and the State dismissed ten other charges. The

Superior Court immediately sentenced Kane to life imprisonment under 11

Del. C. § 4209(a), plus a term of twenty-seven years. Kane did not file a

direct appeal. In 2012, Kane filed a motion for postconviction relief, which

the Superior Court denied. We affirmed that judgment on appeal.1

(3) On August 24, 2017, Kane filed a motion under Civil Rule

60(b) to reopen his criminal conviction and sentence. On September 22,

2017, the Superior Court denied Kane’s motion because the relief he

requested was not properly sought under Civil Rule 60(b) and because

Kane’s convictions and sentence were the result of a guilty plea. This

appeal followed.

(4) Kane argues in his opening brief on appeal that he has a right to

seek relief from his criminal convictions under Civil Rule 60(b) and that he

is entitled to have his convictions and sentence vacated in light of this

Court’s decision in Rauf v. State.2

1 Kane v. State, 2016 WL 1165949 (Del. Mar. 17, 2016). 2 Rauf v. State, 145 A.3d 430 (Del. 2016).

2 (5) Kane is wrong on both counts. Superior Court Civil Rule 60(b)

cannot be used to collaterally attack a criminal conviction.3 Superior Court

Criminal Rule 61 provides the exclusive remedy for setting aside a final

criminal conviction.4 Moreover, this Court’s decision in Rauf did not

invalidate the life sentence provision of Section 4209(a), pursuant to which

Kane was sentenced.5

NOW, THEREFORE, IT IS ORDERED that the judgment of the

Superior Court is AFFIRMED.

BY THE COURT:

/s/ Gary F. Traynor Justice

3 Jackson v. State, 2007 WL 2231072, *1 (Del. Aug. 2, 2007). 4 See Super. Ct. Crim. R. 61(a)(2) (2018). 5 Zebroski v. State, __ A.3d __, 2018 WL 559678 (Del. Jan. 25, 2018).