Whiteman v. State

• Court: Supreme Court of Delaware
• Decided: August 15, 2025
• Docket: 54, 2025
• Status: Published

Opinion

IN THE SUPREME COURT OF THE STATE OF DELAWARE

BENJAMIN WHITEMAN, § § Defendant Below, § No. 54, 2025 Appellant, § § Court Below—Superior Court v. § of the State of Delaware § STATE OF DELAWARE, § Cr. ID No. 30604628DI (N) § Appellee. §

Submitted: June 23, 2025 Decided: August 15, 2025

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

ORDER

After consideration of the appellant’s opening brief, the State’s motion to

affirm and to deny the appellant’s motion to proceed in forma pauperis nunc pro

tunc, and the record on appeal, it appears to the Court that:

(1) In 1987, Benjamin Whiteman pleaded guilty to second-degree burglary.

The court sentenced him to ten years of imprisonment, suspended after three years

for decreasing levels of supervision. In 2024, Whiteman filed a “Motion for

Certificate of Appealability,” in which he asserted that his burglary conviction was

invalid because his counsel and the guilty plea form misled him regarding his right

to appeal. A Superior Court Commissioner recommended that the court deny the

motion on the grounds that (i) Whiteman lacks standing to challenge the 1987 burglary conviction because he has already completed his sentence, and (ii) even if

Whiteman had standing, the motion was subject to summary dismissal under

subsections (d) and (i) of Superior Court Rule of Criminal Procedure 61.1 The

Superior Court adopted the Commissioner’s report and denied the motion.2

(2) Whiteman has appealed to this Court. He argues that his 1987 burglary

conviction violated his constitutional rights and therefore was improperly used as a

basis for imposing a life sentence under the habitual-offender statute in 1989, after

a jury found Whiteman guilty of third-degree unlawful sexual penetration in a

separate case.

(3) Whiteman seeks to set aside the 1987 judgment of conviction for

burglary. Rule 61 bars him from doing so because he is no longer in custody for that

conviction.3 The only exception to the requirement that a defendant be in custody

in order to pursue relief under Rule 61 is when the conviction imposes on the

defendant “collateral legal disabilities or burdens.”4 “But this Court has held,

consistent with federal case law applying the ‘in custody’ requirement of the federal

1 State v. Whiteman, 2024 WL 4524564 (Del. Super. Ct. Oct. 18, 2024) (Commissioner’s Report) 2 State v. Whiteman, 2024 WL 315263 (Del. Super. Ct. Jan. 28, 2025). 3 Weber v. State, 2019 WL 3268813, at *3 (Del. July 19, 2019); see DEL. SUPER. CT. R. CRIM. PROC. 61(a)(1) (“This rule 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 . . . 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 . . . .”). 4 Weber, 2019 WL 3268813, at *3 (internal quotations omitted).

2 habeas statute, that later use of a conviction as a predicate offense for habitual

offender sentencing is not a collateral legal burden for purposes of the ‘in custody’

requirement of Rule 61.”5 We therefore affirm the Superior Court’s denial of

Whiteman’s motion.

(4) This Court previously has found that Whiteman’s untimely, repetitive,

and frivolous filings constitute an abuse of the judicial process.6 The Court enjoined

him from proceeding in this Court on any claim related to his 1989 sentence, unless

leave to proceed were granted by the Court, and ordered that any request by

Whiteman to invoke the Court’s appellate or original jurisdiction in any matter

concerning his 1989 sentence must be accompanied by a sworn affidavit containing

the certifications required by 10 Del. C. § 8803(e).7 The State contends that

Whiteman is attempting to challenge his 1989 sentence and asks the Court to

retroactively deny Whiteman’s motion to proceed in forma pauperis in this appeal,

based on the injunction.

(5) We agree that the motion to proceed in forma pauperis was

improvidently granted in this case. Whiteman clearly is attempting to challenge his

1989 sentence.8 In light of our holding as to the substance of the appeal, however,

5 Id. 6 Whiteman v. State, 2017 WL 961804, at *1 (Del. Mar. 10, 2017). 7 Id. 8 See, e.g., Opening Brief at 4 (stating that his 1989 sentence was based on a “1987 invalid conviction of second degree burglary”); id. at 12 (arguing that the 1987 burglary conviction was

3 we find it unnecessary to retroactively deny the motion to proceed in forma pauperis

at this juncture. But we reiterate our finding that Whiteman’s filings constitute an

abuse of the judicial process and enjoin Whiteman from proceeding in this Court on

any claim related to his 1987 or 1989 convictions or sentences. Any request by

Whiteman to invoke the Court’s appellate or original jurisdiction in any matter

concerning his 1987 or 1989 convictions or sentences must be accompanied by a

sworn affidavit containing the certifications required by 10 Del. C. § 8803(e).

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

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

ENJOINED under 10 Del. C.§ 8803 and this order from filing a future notice of

appeal or extraordinary writ concerning his 1987 or 1989 convictions or sentences.

BY THE COURT:

/s/ Karen L. Valihura Justice

improperly used as a predicate offense when life sentence was imposed in 1989 under the habitual- offender statute).