State v. Desmond

• Court: Superior Court of Delaware
• Decided: May 4, 2022
• Docket: 91009844DI
• Status: Published

Opinion

IN THE SUPERIOR COURT OF THE STATE OF DELAWARE

STATE OF DELAWARE ) ) v. ) ) Case No. 91009844DI CHRISTOPHER DESMOND ) ) Defendant. )

Submitted: March 28, 2022 Decided: May 4, 2022

ORDER DENYING MOTION FOR POST CONVICTION RELIEF

This 4th day of May, 2022, upon consideration of Defendant’s Sixteenth

Motion for Postconviction Relief, it appears to the Court that:

1. Defendant was convicted in November of 1992, following a jury trial,

of several dozen criminal offenses in connection with a series of armed robberies

of different businesses located in New Castle County, Delaware, which took

place between 1990 and 1991. Defendant’s convictions include ten (10) counts

of Robbery in the First Degree and three (3) counts of Theft. In January of 1993,

Defendant was sentenced to seventy-eight (78) years of Level V incarceration.1

2. Defendant has filed numerous unsuccessful petitions, motions, and

appeals in this Court, the Supreme Court of Delaware, the United States District

Court for the District of Delaware, the Third Circuit Court of Appeals, and the

1 See Desmond v. State, 99 A.3d 226, at *1 (Del. Aug. 1, 2014). Supreme Court of the United States since his 1992 conviction. These filings have

sought to reduce Defendant’s sentence and overturn his conviction. As recently

as December 2020, this Court denied Defendant’s Fifteenth Motion for Post

Conviction Relief.2

3. Presently before the Court is Defendant’s Request to File a Post

Conviction Motion to vacate the eight (8) counts of robbery in lieu of the United

State Supreme Court’s recent decision Wooden v. United States. 3 This Request

represents Defendant’s sixteenth (16th) attempt to receive relief under Rule 61.

4. Before addressing the substance of Defendant’s claims in the Motion,

the Court must determine whether Defendant’s claim is procedurally barred.

Under Rule 61, a “motion for postconviction relief may not be 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.” Second or subsequent motions

for post-conviction relief under Rule 61 must be summarily dismissed unless

Defendant pleads with particularity (i) that new evidence exists that creates a

strong inference of actual innocence on the part of the Defendant or (ii) pleads

2 See State v. Desmond, 2020 WL 7584973 (Del. Super. Ct. Dec. 21, 2020). 3 142 S.Ct. 1063 (Mar. 7, 2022). that a new and retroactively applicable rule of constitutional law has been

established by the Supreme Court of Delaware or the United States Supreme

Court which would render Defendant’s sentence invalid.4

5. As previously mentioned, this is Defendant’s sixteenth Rule 61 motion.

As such, Defendant’s Motion must demonstrate that one of the two exceptions to

summary dismissal of secondary or subsequent Rule 61 motions applies in order

to prevail. Defendant’s Motion does not assert that any new evidence in this case

exists.

6. Defendant claims that the second exception to summary dismissal

applies. Defendant argues that Wooden prohibits this Court from imposing

multiple sentences for one single offense as this Court did in Defendant’s case.

However, the Wooden decision addresses not a constitutional requirement, but a

provision of the Armed Career Criminal Act (ACCA) – the occasion

requirement.5 Thus, Wooden establishes no new and retroactively applicable rule

of constitutional law. As to the second requirement, while Wooden does resolve

a split of authority, the decision is inapplicable to Defendant’s sentence as it is

based on a federal statute, not a Delaware criminal law.

4 Del. R. Super. Ct. RCRP. 61 (d)(2) (i-ii). 5 18 U.S.C. §922(g) prohibits felons from being in possession of firearms. The ACCA sets a mandatory minimum sentence of 15 years for §922(g) offenders with at least three prior convictions for specified felonies committed on occasions different from one another. §924(e)(1). 7. In Wooden, the defendant burglarized ten (10) units in a single storage

facility and plead guilty to ten (10) counts of burglary.6 The Wooden defendant

appealed his conviction, claiming that the Armed Career Criminal Act (ACCA)

was not triggered in his case because he had burglarized the ten storage units on

a single occasion rather than “on occasions different from one another” (the

occasion requirement).7 The United States Supreme Court found for the Wooden

defendant and ordered the case remanded to the Sixth Circuit, with the Court

holding that Wooden’s convictions “arose from a closely related set of facts

occurring on the same night, at the same place – making up … ‘a single criminal

episode.’”8 Thus, the requirements for the ACCA to be triggered were not met.

8. The Wooden decision does not create a new applicable rule of

constitutional law. The decision was not based on the constitution which would,

at this point, is what would trigger the right to a post conviction review in

6 Wooden, 142 S.Ct. at 1068. 7 Id. at *9 (citing 18 U.S.C. § 924(e)(1)). 8 Id. at 1074. “Offenses committed close in time, in an uninterrupted course of conduct, will often count as part of one occasion; not so offenses separated by substantial gaps in time or significant intervening events. Proximity of location is also important; the further away crimes take place, the less likely they are components of the same criminal event. And the character and relationship of the offenses may make a difference: The more similar or intertwined the conduct giving rise to the offenses – the more, for example, they share a common scheme or purpose – the more apt they are to compose one occasion.” Id. at 1071. This was the approach articulated by the Court in Wooden in its discussion of the “occasion requirement” of the ACCA. Defendant’s case. Therefore, Defendant is not entitled to relief under Rule 61

because no new constitutional rule was established in Wooden.9

9. Even assuming Wooden establishes a new rule of constitutional law –

which it does not – Wooden is inapplicable to Defendant’s sentence. In Wooden,

the defendant burglarized ten storage units on a single occasion, meaning in a

single night and in a single uninterrupted course of conduct. The record reflects

that Desmond was charged for a series of robberies which took place at multiple

supermarkets and pharmacies in the Wilmington area between December 1990

and October of 1991. Defendant’s present Motion does not plead with

particularity that he was charged with multiple Theft counts stemming from a

single occasion. Whereas the Wooden defendant committed ten burglaries at one

location and during one night, Defendant committed a series of separate robberies

in different incidents over the course of several months. Defendant’s crime spree

over the course of nearly a full year does not constitute a “single occasion” for

ACCA application purposes.

10. In sum, Defendant’s present Motion is presumptively barred by the

prohibition on successive Rule 61 motions. Since Defendant has not pleaded with

9 This Court also notes that it is insufficient for the Defendant to merely show that a new rule of constitutional law was established – which Defendant is unable to do in his case. Additionally, Defendant must show that the new rule of constitutional law was “made retroactive to cases on collateral review by the United States Supreme Court or Delaware Supreme Court[.]” Del. R. Super. Ct. RCRP. 61 (d)(ii). Defendant fails to make this showing and, thus, post conviction relief is inappropriate on this basis alone. particularity that an exception to this procedural bar applies, his current Motion

must be summarily DENIED.

IT IS SO ORDERED.

/s/ Francis J. Jones, Jr. Francis J. Jones, Jr., Judge.

/jb

Original to Prothonotary cc: Jamie McCloskey, Esquire Elise Wolpert, Esquire