State v. Riddock

      IN THE SUPERIOR COURT OF THE STATE OF DELAWARE


STATE OF DELAWARE,                        )
                                          )
                v.                        )    ID No. 0603012717
                                          )
DARREN R. RIDDOCK,                        )
                                          )
                 Defendant.               )
                                          )

                     Date Submitted:   September 26, 2022
                     Date Decided:     December 19, 2022

                            Upon Consideration of:

           Defendant’s Motion to Withdraw Guilty Plea – DENIED
           Defendant’s Motion for Postconviction Relief – DENIED
           Defendant’s Motion for Reduction of Sentence – DENIED
           Defendant’s Motion for Appointment of Counsel – DENIED
           Defendant’s Motion for Expansion of the Record – DENIED
           Defendant’s Motion for Evidentiary Hearing – DENIED

                        MEMORANDUM OPINION




John W. Downs, Deputy Attorney General, Department of Justice, Wilmington,
Delaware. Attorney for the State of Delaware.

Darren R. Riddock, James T. Vaughn Correctional Center, Smyrna, Delaware, pro
se.



JURDEN, P.J.
       Before the Court is Defendant Darren Riddock’s “Motion to Withdraw Guilty

Plea or in the Alternative Motion for Postconviction Relief or in the Alternative

Motion for Reduction of Sentence,” “Motion for Appointment of Counsel,” “Motion

to Expand Record,” and “Motion for Evidentiary Hearing.” For the reasons set forth

in this Memorandum Opinion, Defendant’s motions are denied in their entirety and

for all relief requested.

                                    I.   BACKGROUND

       In connection with the shooting death of Jermaine Kelson (“Kelson”), Darren

Riddock (“Defendant”) was indicted on May 15, 2006, for Murder First Degree,

Possession of a Firearm During the Commission of a Felony (“PFDCF”), and

Possession of a Deadly Weapon by a Person Prohibited (“PDWPP”).1

A.     The Guilty Plea

       On April 26, 2007, pursuant to a plea agreement with the State, Defendant

pled guilty to Manslaughter, a lesser included offense of Murder in the First Degree2

and PFDCF, and the State agreed to drop the remaining gun charge.3 At that time,

the Court engaged Defendant in a thorough plea colloquy. Defendant represented

to the Court that he understood that by entering his plea, he was waiving his right to




1
  Grand Jury Indict., D.I. 2.
2
  Def.’s Plea Agreement, D.I. 18.
3
  Id.

                                           2
a trial,4 to challenge the State’s case against him,5 to question witnesses, and to

present evidence in his defense.6 He acknowledged that he was waiving all available

defenses and said he was satisfied with his attorney’s representation.7 Defendant

admitted he committed and was guilty of Manslaughter and PFDCF.8 Based on the

colloquy and the record, the Court found that Defendant entered his plea knowingly,

voluntarily, and intelligently.9

B.     The Sentencing Hearing

       The Court sentenced Defendant on July 27, 2007.10 Because the case did not

go to trial, the facts were not litigated; thus, the parties are not in agreement as to the

events leading to the death of the victim, Kelson.

       According to defense counsel, on the night of March 14, 2006, Defendant

heard that a group of people planned to confront him following an incident that

occurred a day earlier.11 This led to a confrontation and a fistfight, where Kelson


4
  Plea Colloquy Tr. 8:9-13, D.I. 69. The Court notes that the plea transcript was docketed twice,
first as D.I. 69 and again as D.I. 71. For consistency and conciseness, the Court will only cite it
as D.I. 69.
5
  Id. at 9:2-7.
6
  Id. at 9:12-15.
7
  Id. at 11:13-17, D.I. 69. The Court asked, “Are you satisfied with your lawyer’s representation
of you and that they have fully advised you of your rights and of your guilty plea?” In response,
Defendant stated, “[y]es, ma’am.” Id.
8
  Id. at 6:1-19.
9
  See id. at 12:3-5; see generally Def.’s Plea Agreement, D.I. 18. Defendant does not now, nor has
he ever, disputed the validity of his plea.
10
   Sentence Order, D.I. 31; Corrected Sentence Order, D.I. 32.
11
   See Sent’g Tr. 12-14, 15:1-17, D.I. 70. The Court notes that the sentencing transcript was
docketed twice, first as D.I. 70 and again as D.I. 72. For consistency and conciseness, the Court
will only cite it as D.I. 70.

                                                3
allegedly approached Defendant and punched him in the face.12 Defendant claims

that the two then began fighting.13 Defendant alleges that he heard another individual

yelling for Kelson to shoot him14 and believed that Kelson had a firearm.15 At some

point during the fight, Defendant claims he wrestled a gun away from Kelson and

shot him several times in self-defense.16

       At sentencing, Defense counsel stated that the facts in the case were “hotly

contested,”17 and, had the case gone to trial, Defendant would have vigorously

fought the charges on the basis that he acted in self-defense.18 Defense counsel

posited that the case would have resulted in an all-or-nothing verdict: a life sentence

or an acquittal.19 He suggested that the parties “struck a middle ground” through the

plea agreement, providing Defendant with “a better brand of justice in this matter.”20

       The State strongly disputed Defendant’s version of the events. The State told

the Court that Defendant’s version of the events was wholly inconsistent with the

evidence that would have been introduced had the case proceeded to trial.21 The State

represented that it would have been “quite clear” from the evidence that Defendant


12
   See Sent’g Tr. 15:18-19, 17:16-19, D.I. 70.
13
   Id. at 17:18.
14
   Id. at 17:20-23 – 18:1-3.
15
   Id. at 18:16-17.
16
   Id. at 18:18-20.
17
   Id. at 14:21.
18
   Sent’g Tr. 18:13-15, D.I. 70.
19
   Id. at 19:20-22 – 20:2-3.
20
   Id. at 20:7-8.
21
   See generally id. at 12-34.

                                                 4
and those with him brought the weapons to the fight, not the other way around.22

There was no evidence to suggest that Kelson owned a gun, carried a gun, used a gun,

or was familiar with guns.23 In addition, the State would have highlighted the

indisputable fact that Defendant showed police where he buried the gun,24

Defendant’s confession,25 and his admission to “empty[ing] the clip” when he shot

Kelson.26 The State also would have called the medical examiner as an expert witness

to testify as to Kelson’s cause of death – three gunshot wounds to the chest and back.27

       The Court sentenced Defendant, effective August 10, 2006, as follows: as to

Manslaughter, 25 years at Level V, suspended after 16 years, followed by decreasing

levels of supervision;28 and as to PFDCF, 4 years at Level V.29 The Court stated that

delivering “a lesser sentence would unduly depreciate the loss of life here.”30 In

determining the appropriate sentence, the Court considered the following

aggravating factors: the victim was shot multiple times; Defendant was found in

possession of cocaine and another weapon at the time of his arrest;31 Defendant’s



22
   Id. at 32:13-16.
23
   Id. at 30:10-13.
24
   See, e.g., State’s Resp. to Def.’s Mot. 7, D.I. 67; State’s Resp. to Def.’s Mot., Ex. A, D.I. 67;
State’s Resp. to Def.’s Suppl. Mem. 1, D.I. 81.
25
   State’s Resp. to Def.’s Mot. 7, D.I. 67.
26
   Sent’g Tr. 31:15-19, D.I. 70.
27
   DOJ Letter, D.I. 10l; Sent’g Tr. 28:1-7, D.I. 70.
28
   Defendant’s sentence also requires him to pay restitution in the amount of $8,350 to the Violent
Crimes Compensation Board. Sentence Order, supra note 10.
29
   Id.
30
   Sent’g Tr. 39:1-2, D.I. 70.
31
   Sentence Order, supra note 10.

                                                 5
prior criminal history, which included convictions for menacing and terroristic

threatening; and his prior violations of probation.32 The Court considered the

following mitigating factors: Defendant’s familial support; his expressions of

remorse; and, to the extent the victim punched Defendant, there was an “element of

victim involvement” in the altercation.33

C.     Defendant’s Post-Sentencing Motions

       Defendant filed a Motion for Reduction of Sentence on October 26, 2007,34

which the Court denied on February 4, 2008.35 Since that first motion, Defendant

has filed several letters36 and two subsequent motions for sentence modification

under Rule 35(b).37 The Court denied both motions as procedurally barred because

they were untimely and repetitive38 and noted that they failed to raise any new bases

for challenging the Court’s reasoning at the time of sentencing.39

       On April 14, 2021, Defendant filed the instant motions seeking relief on

several grounds.40 Defendant raises his core arguments in his “Motion to Withdraw



32
   Id.
33
   Sent’g Tr. 39:6-8, D.I. 70.
34
   Def.’s First Rule 35(b) Mot., D.I. 33.
35
   Order Den. Def.’s First Rule 35(b) Mot., D.I. 34.
36
   See e.g., Letters from Def., D.I. 37-38, D.I. 40-42. The content of Defendant’s letters addressed
his progress in prison and his remorse for his actions.
37
   Def.’s Second Rule 35(b) Mot., D.I. 36; Def.’s Third Rule 35(b) Mot., D.I. 44.
38
   Order Den. Def.’s Second Rule 35(b) Mot., D.I. 39; Order Den. Def.’s Third Rule 35(b) Mot.,
D.I. 45.
39
   Orders, supra note 38.
40
   Def.’s Mot. to Withdraw Guilty Plea or in the Alternative Mot. for Postconviction Relief or in
the Alternative Mot. for Reduction of Sent., D.I. 47 [hereinafter Def.’s Omnibus Mot.]; Def.’s

                                                 6
Guilty Plea or in the Alternative Motion for Postconviction Relief or in the

Alternative Motion for Reduction of Sentence” (“Omnibus Motion”).41

       In his Omnibus Motion, Defendant alleges that there is new evidence, in the

form of a previously unidentified witness, which supports his self-defense claim and

suggests that he was not “the cause of the victim’s death.”42 Defendant asserts that

the “ostensible remedy”43 would be for the Court to allow him to “withdraw [his]

guilty plea with commensurate postconviction relief.”44                    In the alternative,

Defendant proffers what he describes as an “equitable solution,” under which the

Court would agree to modify his sentence pursuant to Rule 35(b).45

       In Defendant’s supplemental memorandum,46 submitted in response to the

Court’s request for additional briefing,47 Defendant claims, for the first time, that his

Omnibus Motion and other accompanying motions imply a claim of ineffective




Mot. Expand R., D.I. 48; Def.’s Mot. Appt. Couns., D.I. 49; Def.’s Mot. Evid. Hr’g, D.I. 50; Def.’s
Ex. Vol. 1 & Def.’s Ex. Vol. 2, D.I. 50.
41
   Def.’s Omnibus Mot., D.I. 47.
42
   Id.
43
   Id. ¶ 9, D.I. 47.
44
   See generally id.
45
   See generally id.
46
   Def.’s Suppl. Mem. at 1, D.I. 79.
47
    By order dated, July 14, 2022, the Court ordered supplemental briefing from the parties
addressing the following questions:
         1. How should the pleading standard of Rule 61(d)(2)(i) be applied when one
             seeks a vacatur of his guilty plea based on a claim of new evidence of factual
             innocence, in the absence of a claim of ineffective assistance of counsel?
         2. What is the actual standard for vacatur of a guilty plea under Rule 61, versus Rule
             32(d), in the absence of a claim of ineffective assistance of counsel? Suppl. Briefing
             Letter Order, D.I. 73

                                                7
assistance of counsel (“IAC”).48 Defendant claims he intended to defend his case at

trial under a theory of self-defense,49 but due to the ineffectiveness of counsel, he

was “forced to accept the plea” because his attorney was unable to find

“corroborating witness[es].”50

                                    II.    DISCUSSION

A.     Defendant’s Omnibus Motion51

       1.      Defendant’s Motion to Withdraw His Guilty Plea Is Improper Under
               Superior Court Criminal Rule 32(d).

       Rule 32(d) provides that, on motion for withdrawal of a plea that is made prior

to the imposition of a sentence, the Court “may permit withdrawal of the plea upon

a showing by the defendant of any fair and just reason.”52 When, however, a

defendant moves to withdraw his guilty plea after sentencing, it is deemed a

collateral attack on the conviction, meaning that the “ plea may be set aside only by

motion under Rule 61.”53 Defendant pled guilty to Manslaughter and PFDCF on

April 26, 2007,54 and was sentenced on July 27, 2007.55 Pursuant to Rule 32(d),

Defendant became ineligible to withdraw his plea after he was sentenced. Therefore,



48
   Def.’s Suppl. Mem. at 1, D.I. 79.
49
   Def.’s Omnibus Mot. ¶ 1, D.I. 47.
50
   Id. ¶ 4.
51
   Def.’s Omnibus Mot. ¶ 1, D.I. 47.
52
   Id.; Super. Ct. Crim. R. 32(d).
53
   Super. Ct. Crim. R. 32(d); see Patterson v. State, 

 (Del. 1996).
54
   Def.’s Plea Agreement, D.I. 18.
55
   Sentence Order, supra note 10.

                                                8
Rule 61 is the only proper avenue for his request.56 Accordingly, the Court will

address Defendant’s motion to withdraw his guilty plea as a motion for

postconviction relief pursuant to Superior Court Criminal Rule 61.

       2.     Defendant Is Not Entitled to Postconviction Relief Under Rule 61.

       Rule 61 “balance[s]” the law’s interest in conviction finality “against . . . the

important role of the courts in preventing injustice.”57 While the availability of

collateral review reintroduces uncertainty into completed criminal proceedings, the

possibility of undetected innocence or a comparable miscarriage of justice overrides

its disruptive effects.58 To deter abusive collateral litigation, the standards and

presumptions existing under post-conviction rules purposefully have made “winning

[collateral] relief difficult[.]”59 Even more so, “the bases for ex post guilty plea

challenges are extremely narrow.”60

       Rule 61 is intended to correct errors in the trial process, “not to allow

defendants unlimited opportunities to relitigate their convictions.”61 A defendant

seeking to invalidate a conviction based on a guilty plea must contend with a




56
   Super. Ct. Crim. R. 32(d).
57
   Zebroski v. State, 

 (Del. 2010).
58
   Schlup v. Delo, 

 (1995). Accord Purnell v. State, 

, 1122-23
(Del. 2021).
59
   Brown v. Davenport, 

 (2022).
60
   State v. Brooks, 

, at *4 (Del. Super. June 21, 2022) (quoting Jackson v. State,

, 832 n.2 (Del. 1995)) (internal quotations omitted).
61
   Ploof v. State, 

 (Del. 2013).

                                               9
“presumption of regularity.”62 “The presumption of regularity attaches to all final

judgments . . . and implies those judgments have been done rightly until contrary

evidence appears.”63 Accordingly, Rule 61 shifts the burden of demonstrating that

one’s plea is not supported by a “sufficient factual and legal basis” to the defendant.64

               a.     Defendant’s Rule 61 motion is procedurally barred.

       Before considering the substantive merits of any claim for postconviction

relief, the Court must first determine whether the movant has met the procedural

requirements of Rule 61.65 The Court will not consider the merits of a defendant’s

postconviction claim if it is procedurally barred. 66 A motion under Rule 61 is barred

if it is untimely, repetitive, procedurally defaulted, or formerly adjudicated.67

       A Rule 61 motion for postconviction relief “may not be filed more than one

year after the judgment of conviction is final . . . .”68 When a defendant does not file

a direct appeal with the Supreme Court, “[a] judgment of conviction is final . . . 30

days after the Superior Court imposes sentence.”69 Here, the Court imposed its




62
   Xenidis v. State, 

, at *2 (Del. Mar. 17, 2020) (TABLE).
63
   

64
   Super. Ct. Crim. R. 61(a)(1). See, e.g., Dorsey v. State, 

, at *1-2 (Del. Nov.
6, 2007).
65
   Super. Ct. Crim. R. 61(i).
66
   Younger v. State, 

 (Del. 1990).
67
   Super. Ct. Crim. R. 61(i)(1-4).
68
   Super. Ct. Crim. R. 61(i)(1). Where, as here, a defendant does not file a direct appeal with the
Supreme Court, “[a] judgment of conviction is final . . . 30 days after the Superior Court imposes
sentence.” 

69
   Super. Ct. Crim. R. 61(m).

                                                10
sentence on July 27, 2007,70 and it became final thirty days later, on August 27,

2007.71 Defendant filed the instant motion nearly fourteen years later, on April 14,

2021.72 Defendant’s motion seeking postconviction relief is therefore procedurally

barred as untimely. Consequently, the Court will not consider Defendant’s claims

on the merits.73

              b.     Defendant’s postconviction claim is not excepted under Rule
                     61(i)(5) and Rule 61(d)(2)(i).

       Notwithstanding the fact that his motion is procedurally barred, Defendant

asks the Court to consider the merits of his motion under the “actual innocence”

exception to Rule 61.74        Under this exception, a movant whose motion for

postconviction relief is otherwise barred may nevertheless be afforded relief where

the “[C]ourt lacked jurisdiction or to a claim that satisfies the pleading requirements

of subparagraphs (2)(i) or (2)(ii) of subdivision (d).”75 The text of which states:

       (2) . . . A second or subsequent motion under this rule shall be
       summarily dismissed, unless the movant was convicted after a trial and
       the motion either:

              (i) pleads with particularity that new evidence exists that creates
              a strong inference that the movant is actually innocent in fact of
              the acts underlying the charges of which he was convicted; or


70
   Sentence Order, supra note 10.
71
   Super. Ct. Crim. R. 61(m).
72
   Def.’s Omnibus Mot., D.I. 47.
73
   State v. Broomer, 

, at *1 (Del. Super. Oct. 27, 2022) (citing Younger, 

).
74
   As previously stated, the only procedural bar at issue here is timeliness.
75
   Super. Ct. Crim. R. 61(i)(5).

                                            11
                (ii) pleads with particularity a claim that a new rule of
                constitutional law, made retroactive to cases on collateral review
                by the United States Supreme Court or the Delaware Supreme
                Court, applies to the movant’s case and renders the conviction or
                death sentence invalid.76

       Under the “actual innocence” exception to Rule 61, “[i]nnocence of the acts

underlying the charges requires more than innocence of intent; it requires new

evidence that a person other than the petitioner committed the crime.”77 This

requires the Court to evaluate whether the proffered evidence is both new and

persuasive.78

                           i.       Defendant’s evidence is not new.

       Evidence is “new” if it was discovered after trial and could not have been

discovered before trial with due diligence.79 In State v. Madison, the defendant filed

a postconviction motion claiming actual innocence.80 In support of that claim, he

presented DNA evidence collected pre-trial but tested two years post-trial.81 The

Court found that the defendant’s evidence was not new, stating, “[s]imply because

[the defendant] now has DNA test results . . . doesn’t make it ‘new.’ . . . [T]he




76
   Super. Ct. Crim. R. 61(d)(2) (emphasis added).
77
   Purnell, 254 A.3d at 1095 (internal quotations omitted).
78
   Id.
79
   Lloyd v. State, 

 (Del. 1987). Accord Purnell, 254 A.3d at 1097.
80
   State v. Madison, 

, at *4 (Del. Super. July 29, 2022).
81
   

                                              12
possibility of testing for trace DNA was available pre-trial and his trial counsel made

the tactical decision to forgo such testing.”82

       Here, Defendant asks the Court to consider a statement given in April 2020

(“2020 Statement”) by a witness named Gerald Winder (“Winder”).83 Defendant

claims that this evidence is “new” because he first learned of Winder in early 2020,84

and Winder’s 2020 Statement was “discovered after the police interviews.”85

However, Winder was a known witness at the time of the offense in 2006. Police

interviewed him twice shortly after Kelson’s death in March 2006, and he gave two

statements (“First 2006 Statement” and “Second 2006 Statement”).86                          During

discovery, the State provided those statements to defense counsel,87 and defense files

indicate that an investigator from the Office of Defense Services interviewed Winder

in preparation for trial.88 Like the DNA evidence in Madison, Winder was available

prior to Defendant’s plea – his existence was known when Defendant accepted the

plea bargain and pled guilty.89 What Defendant asks the Court to consider is not



82
   

83
   Def.’s Omnibus Mot. ¶ 7-9, D.I. 47. Defendant also refers to several other pieces of ‘new’
evidence but does not make any argument that they support his actual innocence claim. Id. ¶ 10.
Defendant presents a report by S&H Investigative Services, a 2020 hand-drawn diagram of the
crime scene, a synopsis of a statement by Jermaine Wright, and “investigative” emails. Id.
84
   Id. ¶ 5.
85
   Def.’s Reply to State’s Resp. ¶ 8, D.I. 68.
86
   Def.’s Exs. Vol. II, at 43, 58, D.I. 50; State’s Resp. to Def.’s Mot. ¶ 15 & Ex. A, D.I. 67.
87
   DOJ Letter to ODS, D.I. 6; see also State’s Resp. to Def.’s Suppl. Mem., D.I. 81.
88
   Def.’s Exs. Vol. I, Ex. F, D.I. 50; see also State’s Resp. to Def.’s Suppl. Mem., D.I. 81; State’s
Resp. to Def.’s Mot. ¶ 14, D.I. 67.
89
   See generally supra note 88.

                                                13
new evidence but a re-interview of Winder fourteen years later. That is not “new;”

it is a retelling of his First and Second 2006 Statements.

                    ii.       Defendant’s proffered evidence does not raise a strong
                              inference that he is actually innocent.

       Assuming arguendo the Winder evidence is new, it does not support

Defendant’s claim of actual innocence. To satisfy the actual innocence exception,

the evidence offered “must speak with such persuasive force” 90 as to “create[] a

strong inference that [the Defendant] is actually innocent in fact of the acts

underlying his convictions.”91

       Defendant asks the Court to consider Winder’s 2020 Statement. Without

quoting that statement, Defendant argues that Winder’s 2020 Statement establishes

his innocence because it proves that a second shooter was responsible for killing

Kelson.92 Defendant attempts to use this evidence to support his contention that his

“shots from the front were not inherently fatal” and suggests that Winder’s 2020

Statement proves the existence of a “second shooter.” He further claims that the

second individual shot Kelson in the back of the head93 and is ultimately responsible

for the victim’s death.94


90
   Purnell, 254 A.3d at 1100.
91
   State v. Stokes, 

, at *2 (July 14, 2022).
92
   Def.’s Omnibus Mot. ¶ 8, D.I. 47; Def’s Reply to State’s Resp. ¶ 4, D.I. 68; Def.’s Suppl. Mem.
¶ 4, D.I. 79.
93
   Victim was not shot in the back of the head. DOJ Letter, D.I. 10.
94
   Def.’s Omnibus Mot. ¶ 8, D.I. 47; Def’s Reply to State’s Resp. ¶ 4, D.I. 68; Def.’s Suppl. Mem.
¶ 4, D.I. 79.

                                               14
       In his 2020 Statement, Winder roughly corroborated the version of events

presented by Defendant at sentencing.95 Winder stated that while Defendant and

Kelson were fighting, he heard “like four” shots go off,96 but he did not see who

fired them.97 Winder said he fled the scene after hearing the sound of gunfire.98 As

he was running, he saw another person with a gun, crouching nearby, yelling, “get

him . . . .”99 Winder stated that he continued running and heard more shots after he

fled.100

       Defendant misunderstands what is required under actual innocence. “Actual

innocence means factual innocence, not legal innocence. In other words, [evidence

showing that] the State . . . convicted the wrong person.”101 Defendant’s claims do

not fit this paradigm. At best, Winder’s statement confirms what was known in

2006: there was another individual at the scene with a firearm. It does not establish

that someone else shot and killed Kelson, nor does it establish Defendant’s

innocence. Winder could not identify the shooter or the direction from which the

victim was shot.



95
   See generally Def.’s Exs. Vol. I, at Ex. M, D.I. 50 [hereinafter Winder’s 2020 Statement]; see
generally Sent’g Tr., D.I.70.
96
   Winder’s 2020 Statement at 13:2-7, D.I. 50.
97
   Id. at 13:10.
98
   Id. at 13:11-15.
99
   Id. at 14:4-7, 15:8-12.
100
    Id. at 16:1-3.
101
    Stokes, 

, at *3 (quoting Sawyer v. Whitley, 

, 340 (1992)) (internal
quotes and modifications omitted).

                                               15
       Additionally, Defendant does not dispute that he shot Kelson. On more than

one occasion, Defendant admitted to shooting him multiple times in the abdomen.102

The autopsy report confirms that the cause of the victim’s death was three gunshot

wounds, two to the abdomen and one to the back.103 Defendant gave police the

firearm he used,104 and police were able to link it to the shell casings found at the

scene.105

       Defendant’s claim of actual innocence is further undermined by the fact that

he pled guilty to manslaughter and admitted he caused Kelson’s death.106 He does

not claim that his plea was entered involuntarily. To the contrary, Defendant’s

statements during the plea colloquy, his signature on the plea agreement, and the

instant motion reflect that Defendant knowingly, intelligently, and voluntarily

admitted he committed the crimes and entered his guilty plea.107 “In the absence of

clear and convincing evidence to the contrary, [Defendant] is bound by his answers

. . . and testimony . . . prior to the acceptance of the guilty plea.” 108 The defendant



102
    Def.’s Omnibus Mot. ¶ 1, D.I. 47; Def’s Reply to State’s Resp. ¶ 4, D.I. 68; Sent’g Tr. 31:13-
19, D.I. 70.
103
    Sent’g Tr. 28:3-7, D.I. 70; DOJ Letter, D.I. 10.
104
    State’s Resp. to Def.’s Mot., Ex. A, D.I. 67.
105
    US DOJ Lab. Report, D.I. 9; Sent’g Tr. 31:13-15, D.I. 70
106
    Sent’g Tr. 6:1-12, D.I. 70. See, e.g., State v. Baltazar, 

, at *2 (Del. Super.
Feb. 27, 2015) (“It is difficult to envision how Defendant could introduce evidence he is actually
innocent of the crime when he admitted to the court that he took money from the victim while
suggesting to the victim that he had a gun. Putting aside the theoretical difficulty of showing such
evidence under these circumstances, the instant petition falls far short of the mark.”)
107
    Def.’s Plea Agreement, D.I. 18.
108
    Sommerville v. State, 

 (Del. 1997).

                                                16
has not provided any new evidence, nor does that evidence create a strong inference

that he is innocent.109

         3.    Defendant’s Motion for Reduction of Sentence Under Rule 35(b) Is
               Procedurally Barred.

      Defendant asks the Court to consider reducing his sentence pursuant to Superior

Court Criminal Rule 35(b) as an alternative to the other relief requested. Rule 35(b)

governs motions for modification or reduction of a sentence.110 “Under Rule 35(b),

a motion for sentence modification must be filed within ninety days of sentencing,

absent a showing of ‘extraordinary circumstances.’”111 Rule 35(b) also mandates

that “[t]he [C]ourt will not consider repetitive requests for reduction of sentence.”112

“[T]his bar is absolute and flatly ‘prohibits repetitive requests for reduction of

sentence.’”113 The bar to repetitive motions has no exception.114 Defendant’s

motion for modification of sentence was filed more than ninety days after

sentencing,115 and it is his fourth Rule 35(b) motion.116 Thus, Defendant’s motion


109
    Cf. Purnell, 254 A.3d at 1095; Super. Ct. Crim. R. 61(d)(2)(i).
110
    Super. Ct. Crim. R. 35(b).
111
    Croll v. State, 

, at *1 (Del. Apr. 17, 2020) (TABLE) (affirming the Superior
Court’s denial of a motion for modification of sentence where the motion was repetitive and filed
beyond the 90-day limit); see Hewett v. State, 

, at *1 (Del. Oct. 7, 2014) (“When
a motion for reduction of sentence is filed within ninety days of sentencing, the Superior Court has
broad discretion to decide whether to alter its judgment.”).
112
    Super. Ct. Crim. R. 35(b) (emphasis added).
113
    State v. Redden, 

 (Del. Super. 2015) (quoting Thomas v. State, 

, at *1 (Del. Nov. 25, 2002).
114
    Redden, 

; see also State v. Culp, 

 (Del. 2016).
115
    The motion was filed on April 14, 2021. Def.’s Omnibus Mot., D.I. 47.
116
    Def.’s First Rule 35(b) Mot., D.I. 33, Feb. 4, 2008; Def.’s Second Rule 35(b) Mot., D.I. 36,
June 30, 2008; Def.’s Third Rule 35(b) Mot., D.I. 44, May 20, 2014.

                                                17
is untimely and repetitive. Defendant argues that the Court should still consider his

motion, notwithstanding the procedural default, and claims that he is eligible for

relief under exceptional circumstances. That exception, however, does not apply to

repetitive motions.117

B.     Defendant’s Motion for Appointment of Postconviction Counsel118

       Under Superior Court Rule 61(e), where the movant pled guilty, “[t]he judge

may appoint counsel for an indigent movant’s first timely postconviction motion and

request for appointment of counsel”119 where the Court finds that several conditions

are satisfied.120 As noted above, Defendant’s “Motion for Appointment of Counsel”

was untimely filed and is, therefore, procedurally barred.121 Consequently, there is

no pending motion for postconviction relief; thus, Defendant’s request for

appointment of postconviction counsel is moot.122


117
    Unlike the 90-day jurisdictional limit with its “extraordinary circumstances” exception, the bar
to repetitive motions has no exception. See Redden, 

 (citing Giuricich v. Emtrol
Corp., 

 (Del.1982) (“[W]here a provision is expressly included in one section
of a statute, but is omitted from another, it is reasonable to assume that the Legislature was aware
of the omission and intended it.”)).
118
    Def.’s Mot. Appt. Couns., D.I. 49.
119
    Super. Ct. Crim. R. 61(e)(3).
120
    

 (emphasis added).
        (i) the conviction has been affirmed by final order upon direct appellate review or
        direct appellate review is unavailable; (ii) the motion sets forth a substantial claim
        that the movant received ineffective assistance of counsel in relation to the plea of
        guilty or nolo contendere; (iii) granting the motion would result in vacatur of the
        judgment of conviction for which the movant is in custody; and (iv) specific
        exceptional circumstances warrant the appointment of counsel. 

121
    Def.’s Mot. Appt. Couns., D.I. 49.
122
    State v. Bezarez, 

, at *2 (Del. Super. Dec. 16, 2020), aff’d, 

(Del. 2021); Super. Ct. Crim. R. 61(e)(3).

                                                18
C.     Rule 61 Expansion of Record123

       Defendant moves for expansion of the record, seeking leave to incorporate

the documents from Volumes I and II of his exhibits.124 Rule 61(g)(1) provides

that “[t]he judge may direct that the record be expanded by the parties by the

inclusion of additional materials relevant to the determination of the merits of the

motion.”125 Notwithstanding the fact that Defendant’s Rule 61 motion is

procedurally barred,126 the Court already exercised its discretion under this rule

when it requested that the parties submit supplemental briefing in this case.127

Further, Defendant included Volumes I and II when he filed his Omnibus Motion,

so the evidence he is seeking to admit already appears in the record.128 The Court

finds that no additional expansion of the record is needed or warranted.

D.     Defendant’s Motion for Evidentiary Hearing129

       Defendant asks the Court to hold an evidentiary hearing on this matter.130

Under Rule 61(h), the Court may grant an evidentiary hearing when “[a]fter

considering the motion for postconviction relief, the State’s response, the movant’s

reply[,] . . . the record of prior proceedings in the case, and any added materials, the


123
    Def.’s Mot. Expand R., D.I. 48.
124
    

 See Def.’s Ex. Vol. 1 & Def.’s Ex. Vol. 2, D.I. 50.
125
    Super. Ct. Crim. R. 61(g)(1).
126
    Super. Ct. Crim. R. 61(i)(1).
127
    See Suppl. Briefing Order, supra note 47.
128
    Def.’s Ex. Vol. 1 & Def.’s Ex. Vol. 2, D.I. 50.
129
    Def.’s Mot. Evid. Hr’g, D.I. 50
130
    Id.

                                                19
judge [finds that such a] hearing is desirable.”131 Where an evidentiary hearing is

not warranted, the Court may dispose of the motion “as justice dictates.” 132 Rule

61(h) provides the Court broad discretion in deciding “whether an evidentiary

hearing is desirable.”133 Based on a review of the entire record and the disposition

of the above motions, the Court finds that an evidentiary hearing will not change the

outcome134 and is neither necessary nor desirable.

                                 IV.    CONCLUSION

       For all the reasons stated above, Defendant’s Motion to Withdraw Guilty Plea

is DENIED, Defendant’s Motion for Postconviction Relief is DENIED,

Defendant’s Motion for Reduction of Sentence is DENIED, Defendant’s Motion for

Appointment of Counsel is DENIED AS MOOT, Defendant’s Motion for

Expansion of the Record is DENIED, and Defendant’s Motion for Evidentiary

Hearing is DENIED.



       IT IS SO ORDERED.



                                                       /s/ Jan R. Jurden
                                                 Jan R. Jurden, President Judge

131
    Super. Ct. Crim. R. 61(h)(1).
132
    Id.
133
    Id.
134
    State v. Thompson, 

, at *16 (Del. Super. May 31, 2022) (citing Hawkins v.
State, 

, at *1 (Del. Dec. 10, 2003)).

                                            20