State v. Windell

• Court: Superior Court of Delaware
• Decided: April 28, 2022
• Docket: 1910008972 2011001365
• Status: Published

Opinion

SUPERIOR COURT OF THE STATE OF DELAWARE

CRAIG A. KARSNITZ 1 The Circle, Suite 2 RESIDENT JUDGE GEORGETOWN, DE 19947

April 28, 2022

Shane Windell SBI #00845067 Howard R. Young Correctional Institution P.O. Box 9561 Wilmington, DE 19809

Thomas Pedersen, Esquire 115 South Bedford Street Georgetown, DE 19947

Casey Ewart, Esquire Deputy Attorney General Department of Justice 13 The Circle Georgetown, DE 19947

Re: State of Delaware v. Shane Windell Def. ID Nos. 1910008972, 2011001365 Motion for Postconviction Relief (R-1)

Dear Mr. Windell and Counsel:

On September 22, 2021, I accepted guilty pleas from Shane M. Windell

(“Windell or “Movant”) to three felony charges: Non-Compliance with Conditions

1 of Bond, Terroristic Threatening of a Public Official, and Stalking. On November

12, 2021, I sentenced Movant to five (5) years of incarceration at Level 5 (with credit

for 730 days previously served), followed by descending levels of probation.1 I also

imposed other conditions on Movant, including no contact with Movant’s victims,

mental health treatment, and GPS monitoring upon his release from Level 5.

On December 15, 2021, through his counsel (“Trial Counsel”), Movant filed

a Motion for Modification of Sentence (the “Modification Motion”) under Superior

Court Criminal Rule 35. The State of Delaware (the “State”) filed its Opposition

to Movant’s Modification Motion on January 4, 2022. I denied the Modification

Motion on January 19, 2022.

Movant did not take a direct appeal to the Delaware Supreme Court, and has

filed no other motions or petitions seeking relief from the judgment in state or federal

court.

Rather, on February 17, 2022, Movant filed his first pro se Motion for

Postconviction Relief (the “Rule 61 Motion”) in connection with the above-

1 Movant faced a possible sentence range of zero to nine years at Level 5. As part of the plea agreement, the State agreed to cap its recommendation (not its promise of a sentence) for any unsuspended Level 5 sentence at four years, which is exactly what it did. The State also entered a nolle prosequi in case #2001001145 (pending in the Kent County Court of Common Pleas) in return for the defendant's agreement to pay restitution to the victim in that case.

2 referenced case. Movant’s statements of his three grounds under Section 12 of his

Rule 61 Motion are brief, conclusory, non- specific, and provide little factual support

for his claims. This in and of itself could constitute a sufficient independent basis

for my denial of the Rule 61 Motion.2

This Court has held that "[a] movant [under Rule 61] must support his or

her assertions with 'concrete allegations of actual prejudice, or risk summary

dismissal."'3 In this case, "[i]t plainly appears from the motion that Defendant

has not shown entitlement to relief. Defendant's motion is completely

conclusory, and [he] has failed to support his claims with facts. For these reasons

Defendant's motion warrants summary dismissal."4

However, I will make reasonable inferences to divine Movant’s meaning. In

his Rule 61 Motion, Movant asserts three (3) grounds for postconviction relief: (1)

“Unfulfilled” Plea Agreement (Movant received a greater sentence then the State’s

recommended four-year cap), (2) Guilty Plea Coerced by Trial Counsel (although

Movant does not assert ineffective assistance of counsel, Movant claims that Trial

2 “The Motion shall specify all the grounds for relief which are available to the movant and of which the movant has or, by the exercise of reasonable diligence, should have knowledge, and shall set forth in summary form the facts supporting each of the grounds thus specified.” Super. Ct. Crim. R. 6l(b)(2) (emphasis supplied). 3 State v. Johnson, 2009 WL 638511, at *1 (Del. Super. Mar. 12, 2009), affd, 977 A.2d 898 (Del. 2009) (quoting State v.Childress, 2000 WL 1610766, at *1 (Del. Super. Sept. 19, 2000)). 4 Id. at *2.

3 Counsel told him that, if he pleaded guilty, I would impose a sentence within

SENTAC guidelines), and (3) Excessive Sentence (I stated in my denial of the

Modification Motion that the sentence was “substantially in excess” of the SENTAC

guidelines). On March 10, 2022, the State filed its Response in Opposition to the

Rule 61 Motion. Movant did not file a timely reply to the State’s Response. This

is my decision on the Rule 61 Motion.

As a preliminary matter, the Movant’s claim that his plea agreement went

unfulfilled because his actual sentence exceeded four years, a condition he

alleges was part of his plea agreement, effectively operates as a challenge to his

sentence. Under the plain language of Rule 61, a postconviction challenge to a

non-capital sentence is not cognizable under Rule 61.5

Before addressing the merits of the Motion, I first address the four procedural

bars of Superior Court Criminal Rule 61(i).6 If a procedural bar exists, as a general

rule I will not address the merits of the postconviction claim.7 Under the Delaware

5 State v. Berry, 2016 WL 5624893, at *4 (Del. Super. June 29, 2016) (citing Super. Ct Crim. R. 61(a)(1)). Rule 61(a)(1) states that Rule 61 "governs the procedure on an application by a person in custody under a sentence of this court seeking to set aside the judgment of conviction or a sentence of death on the ground that the court lacked jurisdiction or on any other ground that is a sufficient factual and legal basis for a collateral attack upon a criminal conviction or a capital sentence." Neither of these two scenarios applies in the case at bar. 6 Ayers v. State, 802 A.2d 278, 281 (Del.2002) (citing Younger v. State, 580 A.2d 552, 554 (Del. 1990). 7 Bradley v. State, 135 A.3d 748 (Del. 2016); State v. Page, 2009 WL 1141738, at*13 (Del.

4 Superior Court Rules of Criminal Procedure, a motion for post-conviction relief can

be barred for time limitations, successive motions, failure to raise claims that could

have been raised, or former adjudication.8

First, a motion for postconviction relief exceeds time limitations if it is filed

more than one year after the conviction becomes 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 was first recognized by the Supreme Court of

Delaware or the United States Supreme Court.9 In this case, Movant’s conviction

became final for purposes of Rule 61 thirty days after I imposed sentence. 10 I

imposed sentence on Movant on November 12, 2021. Movant filed his pro se first

motion for postconviction relief on February 17, 2022. Therefore, consideration of

the Motion is not barred by the one-year limitation of Rule 61(i)(1).

Second, subsequent motions for postconviction relief are not permitted unless

certain conditions are satisfied. 11 Since this is Movant’s first motion for

postconviction relief, this restriction does not apply.

Super. April 28, 2009). 8 Super. Ct. Crim. R. 61(i). 9 Super. Ct. Crim. R. 61(i)(1). 10 Super. Ct. Crim. R. 61(m)(1). 11 Super. Ct. Crim. R. 61(i)(2)

5 Third, grounds for relief “not asserted in the proceedings leading to the

judgment of conviction” are barred unless the movant can show “cause for relief” and

“prejudice from [the] violation.”12 Rule 61(i)(3) bars claims that were not raised

in the proceedings unless Movant can establish cause for failing to timely raise

the claim, and actual prejudice from failing to raise the claim.13 Movant did not

challenge his sentence on direct appeal, nor does the Rule 61 Motion offer any

explanation for why he failed to do so. Moreover, Rule 61(i)(3) bars claims that

could have been but were not raised below on direct appeal, even when ineffective

assistance of counsel is asserted,14 unless Movant successfully demonstrates that

counsel was in fact ineffective and that ineffectiveness prejudiced his rights.15 To

the extent that Ground Two of the Rule 61 Motion (Coerced Guilty Plea) implies

that Movant received ineffective assistance of counsel in connection with his plea

12 Super. Ct. Crim. R. 61(i)(3). 13 Wilson v. State, 900 A.2d 102 (Table), 2006 WL 1291369, at *2 (Del. May 9, 2006). (citing McCluskey v. State, 782 A.2d 265 (Del. 2001)). 14 To the extent that Ground Two of the Rule 61 Motion implies a claim of ineffective assistance of counsel, normally under Delaware law ineffective assistance of counsel claims may not be addressed by the Delaware Supreme Court on direct appeal. Rather, such collateral claims are properly raised for the first time in postconviction proceedings. State v. Schofield, 2019 WL 103862, at *2 (Del. Super. January 3, 2019); Thelemarque v. State, 2016 WL 556631, at *3 (Del. Feb. 11, 2016) (“[T]his Court will not review claims of ineffective assistance of counsel for the first time on direct appeal.”); Watson v. State, 2013 WL 5745708, at *2 (Del. Oct. 21, 2013) (“It is well-settled that this Court will not consider a claim of ineffective assistance that is raised for the first time in a direct appeal.”). 15 Wilson v. State, 900 A.2d 102 (Table), 2006 WL 1291369, at *2 (Del. May 9, 2006) (citing Gattis v. State, 697 A.2d 1174 (Del. 1997)).

6 agreement and the resulting sentence, he has "failed to demonstrate that his

counsel acted unreasonably by failing to file a direct appeal if for no other reason

than the fact that his sentence was within the statutory limits and therefore not

'illegal."'16 The Rule 61 Motion is barred under Rule 61(i)(3) for failure to assert on

direct appeal.

Fourth, grounds for relief formerly adjudicated in the case, including

“proceedings leading to the judgment of conviction, in an appeal, in a post-conviction

proceeding, or in a federal habeas corpus hearing” are barred.17 Movant has already

asked me to review the length of his sentence (because it exceeded both the State's

recommended cap and the applicable SENTAC guidelines) in his Modification

Motion. I considered and rejected his request, and Movant chose not to appeal

that decision. Thus, any claims based on the length of Movant’s sentence and its

departure from the State’s recommended cap and the SENTAC guidelines have

been formerly adjudicated. The Rule 61 Motion is barred under Rule 61(i)(4) as

formerly adjudicated.

Finally, the four procedural bars do not apply either to a claim that I lacked

jurisdiction or to a claim that pleads with particularity that new evidence exists that

16 Id. (internal footnotes omitted). 17 Super. Ct. Crim. R. 61(i)(4).

7 creates a strong inference of actual innocence,18 or that a new retroactively applied

rule of constitutional law renders the conviction invalid. 19 None of these claims

applies in this case.

At their core, all three of Movant’s claims are effectively attempts to

relitigate the length of his sentence under Rule 35 under the guise of a Rule 61

Motion. However, under the plain language of Rule 61, a postconviction

challenge to a non-capital sentence is not cognizable under Rule 61. 20 The

Delaware Supreme Court has repeatedly held that defendants cannot use Rule 61

postconviction proceedings to challenge non-capital sentences.21

It is noteworthy that the Plea Agreement and the Truth-in-Sentencing Guilty

Plea Form clearly set forth that there was open sentencing, that the sentence faced

by Movant was from zero to nine years at Level 5, and that sentencing was at my

discretion. Movant acknowledged this by signing those forms.

In addition, Movant checked "Yes" in response to the question "Have you

freely and voluntarily decided to plead guilty to the charges listed in your written

18 Super. Ct. Crim. R. 61(i)(5). 19 Super. Ct. Crim. R. 61(d)(2)(i) and (ii). 20 State v. Berry, 2016 WL 5624893, at *4 (Del. Super. June 29, 2016) (citing Super. Ct. Crim. R. 61(a)(1)). 21 Id. (citing Pearlman v. State, 970 A.2d 257 (Table), 2009 WL 766522, at *1 (Del. Mar. 25, 2009); Wilson v. State, 900 A.2d 102 (Table), 2006 WL 1291369, at *2 (Del. May 9, 2006)).

8 plea agreement?" and responded "No" to the question "Have you been promised

anything that is not stated in your written plea agreement?" Likewise, Movant

answered "No" when the form asked, "Has your lawyer, the State, or anyone

threatened or forced you to enter this plea?" and he then affirmed that he was

satisfied with his attorney's representation of him. When Movant was asked "Has

anyone promised what your sentence will be?" he replied by checking "No." In

response to the final two questions on the Truth-in-Sentencing Guilty Plea Form,

Movant affirmed that he had read and understood all of the information on the

form and that all the answers he had given were truthful.

In my plea colloquy with Movant, I asked a similar series of questions to

make sure that Movant understood the terms of his plea agreement and the rights

that he was giving up by entering into a guilty plea agreement. I would never

have accepted Movant’s guilty plea if he had given answers that were

inconsistent with those on his written Truth-in-Sentencing Guilty Plea Form.

Movant’s “claim that he was coerced into accepting the guilty plea,

because Trial Counsel allegedly misrepresented the length of his sentence and

deprived him of his free will, effectively operates as a challenge to his guilty plea,

which he waived when the guilty plea was accepted by the Court." 22 "A

22 State v. Berry. 2016 WL 5624893 at *5 (Del. Super. June 29, 2016).

9 defendant is bound by his statements given during the plea colloquy, absent clear

and convincing evidence that the defendant did not understand the plea

agreement, that he was forced to accept the plea, or that he was not satisfied with

trial counsel's representation."23

The Rule 61 Motion presents no evidence that would call into question

Movant’s representations to me that he understood the terms of his plea

agreement and that he was freely and voluntarily deciding to plead guilty.

Movant is, therefore, “bound by his statements made at the plea colloquy" and

in his Truth-in-Sentencing Form, "and any claims he now makes as to defects,

errors, misconduct and deficiencies that occurred prior to the entry of the plea

must fail."24

Movant’s Rule 61 Motion repeats an argument previously made in his

Motion for Modification of Sentence, i.e., that the 5-year sentence I imposed

"was 15 times greater than the [SENTAC] guidelines." The introduction to the

SENTAC Benchbook contains the following disclaimer: "[I]t should be noted

that Delaware's sentencing guidelines are voluntary, non-binding, and as such,

23 Id. (citing State v. Harden, 1998 WL 735879 at *5 (Del. Super. Jan. 13, 1998), affd, 719 A.2d 947 (Del. 1998)). 24 Id. at *6.

10 in the absence of constitutional violations, are not generally subject to appeal."25

Likewise, the Delaware Supreme Court "has consistently held that it is without

appellate jurisdiction in criminal cases to review challenges on the sole basis

that a punishment deviated from the SENTAC sentencing guidelines." 26

Consequently, Movant’s references to SENTAC are inapposite to any claim

under Rule 61.

Movant claims that, in my response to his Motion for Modification of

Sentence, I stated the sentence was “substantially in excess.” He is correct

insofar as this part of my statement goes. However, my entire statement was:

"As I said at sentencing, Mr. Windell's cases raise significant and difficult issues.

The sentence I imposed was substantially in excess of what is suggested by the

SENTAC guidelines." I then summarized the same aggravating factors I had

previously cited in support of my upward departure from the SENTAC

guidelines, and I stated that nothing in the Motion for Modification of Sentence

had changed my mind that Movant’s sentence was appropriate.

The Delaware Supreme Court "does have appellate jurisdiction to review

25 SENTAC Benchbook 2020, at 21. 26 Siple v. State, 701 A.2d 79, 83 (Del. 1997) (citing Mayes v. State, 604 A.2d 839, 845-46 (Del. 1992); Gaines v. State, 571 A.2d 765, 767 (Del. 1990); Ward v. State, 567 A.2d 1296, 1297-98 (Del. 1989)).

11 criminal sentences on the basis of alleged: unconstitutionality; factual predicates

which are either false, impermissible, or lack minimum indicia of reliability;

judicial vindictiveness, bias, or sentencing with a 'closed mind'; and any other

illegality."27 "Except for these constitutional and legal constraints, it is well-

established that appellate review of criminal sentences is limited in Delaware to a

determination that the sentence is within the statutory limits."28

While my sentence may have been "substantially in excess" of the

applicable SENTAC guidelines, it fell squarely within the statutory penalty range

appliable to the charges for which Movant pleaded guilty, and I made a record

of the aggravating factors justifying its upward departure from the guidelines.

Given the disposition of this Rule 61 Motion as procedurally barred under

Ruel 61(i)(3) and Rule 61(i)(4), the record need not be further expanded (by an

Affidavit of Trial Counsel or otherwise) nor is an evidentiary hearing required. 29

Summary dismissal is appropriate.30

27 Siple, 701 A.2d at 83 (emphasis in original) (citations omitted). 28 Id. (citing Mayes, 604 A.2d at 842) 29 Super. Ct. Crim. R. 61(g)(5). 30 Super. Ct. Crim. R. 61(d)(5).

12 For the reasons set forth above, I find that the Motion for Postconviction

Relief must be DENIED.

IT IS SO ORDERED.

Very truly yours,

/s/ Craig A. Karsnitz

cc: Prothonotary