Ross v. State

• Court: Supreme Court of Delaware
• Decided: July 7, 2020
• Docket: 104, 2020
• Status: Published

Opinion

IN THE SUPREME COURT OF THE STATE OF DELAWARE

FRANK ROSS, § § Defendant Below, § No. 104, 2020 Appellant, § § Court Below—Superior Court v. § of the State of Delaware § STATE OF DELAWARE, § Cr. ID Nos. 8004000010, § 8004000011, 8004000012 (K) Plaintiff Below, § Appellee. §

Submitted: April 28, 2020 Decided: July 7, 2020

Before SEITZ, Chief Justice; VALIHURA and VAUGHN, Justices.

ORDER

After 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, Frank Ross, appeals from the Superior Court’s denial of

his motion for postconviction relief. The State has filed a motion to affirm the

Superior Court’s judgment on the ground that it is manifest on the face of Ross’s

opening brief that the appeal is without merit. We agree and affirm.

(2) The record reflects that in September 1981, a Superior Court jury

convicted Ross of first-degree murder, first-degree conspiracy, and possession of a deadly weapon during the commission of a felony. The Superior Court sentenced

him to imprisonment for life plus eight years. This Court affirmed on direct appeal.1

(3) On November 27, 2019, Ross filed a motion for postconviction relief,

raising various issues concerning the instructions provided to the jury at his trial.

The Superior Court denied the motion as procedurally barred under Superior Court

Criminal Rule 61. Ross has appealed to this Court.

(4) Motions for postconviction relief are governed by the procedural and

pleading requirements set forth in Superior Court Criminal Rule 61, as in effect at

the time that the motion is filed.2 Superior Court Criminal Rule 61(i)(1) bars a

motion for postconviction relief that is filed “more than one year after the judgment

of conviction is final or, if it asserts a retroactively applicable right that is newly

recognized after the judgment of conviction is final, more than one year after the

right is first recognized by the Supreme Court of Delaware or by the United States

Supreme Court.” Ross’s conviction became final more than three decades ago, and

he has not asserted a newly recognized, retroactively applicable right that overcomes

the procedural bar under Rule 61(i)(1). Nor has he asserted any claim that the

Superior Court lacked jurisdiction or pleaded with particularity any new evidence of

1 Ross v. State, 482 A.2d 727 (Del. 1984). 2 Durham v. State, 2017 WL 5450746 (Del. Nov. 13, 2017).

2 actual innocence or any new, retroactive rule of constitutional law that applies to his

case and renders his conviction invalid.3

NOW, THEREFORE, IT IS ORDERED that the motion to affirm is

GRANTED, and the judgment of the Superior Court is AFFIRMED.

BY THE COURT:

/s/ Karen L. Valihura Justice

3 DEL. SUPER. CT. CRIM. R. 61(i)(5), (d)(2).