State v. Shivers

• Court: Superior Court of Delaware
• Decided: April 10, 2023
• Docket: 1610015092
• Status: Published

Opinion

SUPERIOR COURT OF THE STATE OF DELAWARE

CRAIG A. KARSNITZ, SUSSEX COUNTY COURTHOUSE RESIDENT JUDGE 1 THE CIRCLE, SUITE 2 GEORGETOWN, DE 19947 TELEPHONE (302) 856-5263

April 10, 2023

Dwight L. Shivers, Jr. SBI# 718336 James T. Vaughn Correctional Center 1181 Paddock Road Smyrna, DE 19977

Re: State of Delaware v. Dwight L. Shivers, No. 1610015092 Motion to Reopen Rule 61 Petition and Expand the Record

Dear Mr. Shivers:

This case goes back five years. Jeffery McLane, Esquire was your trial counsel

(“Trial Counsel”). On August 25, 2017, you pleaded guilty to Attempted Murder

(First Degree) and Assault (Second Degree).1 You were sentenced that same day to

40 years at Level V suspended after 15 years at various levels of supervision.

On September 14, 2017, you filed a Motion for Modification of Sentence.

That Motion was denied on September 21, 2017.

1 Two charges of Possession of a Deadly Weapon During the Commission of a Felony, and a charge of Theft of a Motor Vehicle, resulted in nolle prosequi. On October 10, 2017, you filed your first Rule 61 Petition. On October 16,

2017, this Court expanded the record under Superior Court Rule 61(g)(2) to require

that an affidavit from Trial Counsel (the “Trial Counsel Affidavit”) be filed by

November 17, 2017, copying you and the State. You were given until December 17,

2017 to respond to the Trial Counsel Affidavit if you wished to do so. The Trial

Counsel Affidavit was filed on October 19, 2017. You responded on December 20,

2017 in a letter in which you state that “I received a copy of my attorney’s response

to the Court, however I have not heard anything back from the Court as of 12-17-

17” (emphasis added). The first Rule 61 Petition was denied on December 20, 2017.

On April 13, 2020, you filed your second Rule 61 Petition with me. I denied

it on April 30, 2020. You appealed to the Delaware Supreme Court on November

20, 2020. The Supreme Court affirmed on June 24, 2021.

On January 27, 2023 you filed a motion entitled “Motion to Reopen Post

Conviction Rule 61 and Expand the Record” (the “Motion”). In the Motion, you

state that you were never given a chance to respond to the Trial Counsel Affidavit

under Superior Court Rule 61(g)(3), and thus were denied due process. This is

inaccurate. As stated above, your December 20, 2017 letter to the Court states that

you received a copy of your attorney’s response to the Court. Nonetheless, you failed

to timely respond to the Trial Counsel Affidavit by December 17, 2017. This

2 operates as a waiver, and your request to now respond to the Trial Counsel Affidavit

comes too late.

Moreover, there is no procedure set forth in Rule 61 or elsewhere to “reopen”

a Rule 61 Petition that has been denied. You have already exhausted your remedies

by appealing my denial of your second Rule 61 Petition to the Delaware Supreme

Court, which affirmed my denial.

The second part of your Motion seeks to further expand the record under

Superior Court Rule 61(g)(1) to allow you to respond to the Trial Counsel Affidavit.

There is no procedure set forth in Rule 61 or elsewhere to further expand the record

after a Rule 61 Petition that has been denied. As discussed above, your request comes

too late.

Your Motion to Reopen Post Conviction Rule 61 and Expand the Record is

DENIED.

IT IS SO ORDERED.

Very truly yours,

/s/ Craig A. Karsnitz

cc: Prothonotary’s Office Department of Justice