State v. Whiteman

• Court: Superior Court of Delaware
• Decided: October 18, 2024
• Docket: 306046281DI
• Status: Published

Opinion

IN THE SUPERIOR COURT OF THE STATE OF DELAWARE

STATE OF DELAWARE, ) ) Plaintiff, ) ) ) v. ) Cr. ID No. 30604628DI ) ) BENJAMIN F. WHITEMAN, ) ) Defendant. ) )

Submitted: September 11, 2024 Decided: October 18, 2024

COMMISSIONER’S REPORT AND RECOMMENDATION THAT DEFENDANT’S POSTCONVICTION MOTION SEEKING A “CERTIFICATE OF APPEALABILITY” SHOULD BE DENIED

Daniel Logan, Esquire, Deputy Attorney General, Department of Justice, Wilmington, Delaware, Attorney for the State.

Benjamin Whiteman, James T. Vaughn Correctional Center, Smyrna, Delaware, pro se.

PARKER, Commissioner This 18th day of October 2024, upon consideration of Defendant’s

Postconviction Motion seeking a “Certificate of Appealability”, it appears to

the Court that:

1. Defendant Benjamin F. Whiteman pled guilty in 1987 to one count of

second degree burglary. The 1987 plea agreement provided that the State

would not recommend a life sentence but the defendant would admit that his

three prior felony convictions qualified him as a habitual offender under 11

Del. C. § 4214(a). The Superior Court accepted the plea agreement but did

not sentence him as a habitual offender. Rather, the Superior Court, in its

discretion, sentenced Defendant to 10 years of Level V incarceration, to be

suspended after 3 years, for 7 years of decreasing levels of supervision.

2. In 1989, a Superior Court jury convicted Defendant of third degree

unlawful sexual penetration in Criminal Action No. 30901716DI. Defendant

was sentenced to life imprisonment as a habitual offender in accordance with

11 Del. C. § 4214(a). Defendant’s habitual sentence was effective on March

15, 1989 and was to be served consecutive to any other sentence he was then

serving.1 On direct appeal, the Delaware Supreme Court affirmed

Defendant’s conviction.2

1 State v. Whiteman, ID No. 30901716DI (Del.Super. Oct.27, 1989)(D.I. 15). 2 Whiteman v. State, 1991 WL 12112 (Del.).

1 3. Since that 1989 life imprisonment sentence, Whiteman has barraged

the courts with attacks on his 1987 and 1989 convictions and sentences, all

without success.3 Included among those attacks, Whiteman has already filed

three unsuccessful Rule 61 motions challenging his plea and sentence related

to his 1987 burglary conviction.4

4. The Delaware Supreme Court has previously held that Whiteman’s

untimely, repetitive, and frivolous filings constitute an abuse of the judicial

process. In the future, unless leave to proceed is granted by the Delaware

Supreme Court, Whiteman is enjoined from proceeding in the Delaware

Supreme Court on any claim related to his 1989 sentence.5

5. On August 5, 2024, Defendant filed the subject postconviction motion

seeking a “Certificate of Appealability” again challenging the validity of his

1987 plea and sentence.

6. At this late stage, Whiteman does not have standing to challenge his

1987 burglary conviction and sentence since he has already fully served and

been discharged from that sentence. Whiteman is currently serving a

separate life term from a wholly unrelated 1989 conviction for unlawful

3 See, Whiteman v. State, 2009 WL 3086567 (Del.); Whiteman v. State, 2013 WL 434143, *1 (Del.). 4 See, State v. Whiteman, 2006 WL 1579781, *1-2 (Del.Super.), aff’d, 2006 WL 1971811 (Del.); State v. Whiteman, 2013 WL 434143 (Del.); State v. Whiteman, 2022 WL 17076219 (Del.Super.), dismissing appeal, 2023 WL 1809359 (Del.). 5 Whiteman v. State, 2017 WL 961804, *1 (Del.).

2 sexual penetration. Any academic argument about the validity of the

burglary conviction and sentence presents no ”actual controversy” now

because that sentence was terminated decades ago.6

7. Superior Court Criminal Rule 61 provides the exclusive remedy for

setting aside a judgment.7 Under Rule 61, a person loses standing to move

for postconviction relief where the defendant is not in custody or subject to

future custody for the underlying offense or challenged sentence.8

8. The only exception to Rule 61 requiring the defendant to be in

custody or subject to future custody for the challenged sentence is when the

defendant suffers “collateral legal disabilities or burdens” from the

conviction.9 But the Delaware Supreme Court has consistently held that the

later use of an earlier conviction as a predicate offense for habitual offender

sentencing does not constitute a collateral legal disability or burden, and

does not create an exception to the “in custody” requirement of Rule 61.10

6 See, D.I. 121- Order dated April 15, 2021 denying Defendant’s Motion for Correction of Illegal Sentence as moot. See also, State v. Whiteman, 2022 WL 17076219, *1 (Del.Super.)(as Defendant is not currently in custody for the burglary sentence, he is not entitled to Rule 61 considerations). 7 Weber v. State, 2019 WL 3268813, *3 (Del. 2019); Alley v. State, 2015 WL 7188326 (Del.). 8 Del.Super.Ct.Crim.R. 61(a)(1); Weber v. State, 2019 WL 3268813, *3 (Del.); Coleman v. State, 2015 WL 5096047, *2 (Del. 2015). 9 Weber v. State, 2019 WL 3268813, *3 (Del. 2019). 10 Weber v. State, 2019 WL 3268813, *3 (Del. 2019); Coleman v. State, 2015 WL 5096047, *2 (Del.); Short v. State, 2015 WL 4199849 (Del.)(rejecting claim that 2002 conviction used to enhance sentence for 2004 conviction gave standing to invalidate the

3 9. The pending motion, seeking to set aside the 1987 burglary conviction

and sentence, must be considered through the lens of Rule 61. Since

Whiteman is not currently in custody for the 1987 burglary conviction, he

lacks standing to seek Rule 61 postconviction relief related to that

conviction. His postconviction motion for a “certificate of appealability” to

challenge his 1987 burglary conviction and sentence is denied.

10. For the sake of completeness, even if Whiteman was entitled to Rule

61 considerations, he would not be able to overcome the threshold

requirement for proceeding with the pending motion.

11. Rule 61 contains a number bar that precludes review of “second or

subsequent” motions.11 Rule 61 requires all second or subsequent motions to

be summarily dismissed unless an exception applies.12 The only defendants

that can avail themselves of an exception to the procedural bars, are those

defendants that were convicted after a trial.13 For defendants who pled

guilty, like Whiteman, and did not have a trial, there are no applicable

exceptions.14 For defendants whose convictions stemmed from a guilty plea,

any second or subsequent motion must be summarily dismissed. Here,

2002 conviction even though defendant was no longer in custody on sentence imposed for 2002 conviction). 11 Del.Super.Crim.R. 61(d)(2), (i)(2). 12 Del.Super.Crim.R. 61(d)(2), (i)(5). 13 See, Del.Super.Crim.R. 61(d)(2). 14 See, Cadiz v. State, 2022 WL 3366253, *1 (Del.); Brice v. State, 2024 WL 3710504, *1 (Del.).

4 Whiteman’s conviction to the 1987 theft charge stemmed from a guilty plea.

As such, there are no exceptions applicable to him to the Rule 61 bar

precluding the consideration of second or subsequent motions.

12. In accordance with the mandates of Rule 61, Whiteman’s pending

motion, his fourth, should be dismissed because he failed to meet the

threshold pleading requirements for proceeding with a successive Rule 61

motion.

13. In connection with the pending motion, Whiteman has also requested

the appointment of counsel. Because Whiteman lacks standing to challenge

his 1987 burglary conviction and sentence, his request for the appointment

of counsel is denied. Even if he did not lack standing, Whiteman has not

satisfied the pleading requirements allowing him to proceed with the

pending motion, and therefore, his request for the appointment of counsel is

denied.

5 For all of the foregoing reasons, Defendant Whiteman’s

Postconviction Motion seeking a “certificate of appealability” to challenge

his 1987 theft conviction and sentence should be DENIED. Whiteman lacks

standing to challenge his 1987 burglary conviction and sentence, and even if

he did not, his has failed to satisfy the threshold pleading requirements

allowing him to proceed with the pending motion. His related request for

the appointment of counsel should also be DENIED.

IT IS SO RECOMMENDED.

/s/ Lynne M. Parker Commissioner Lynne M. Parker

oc: Prothonotary