State v. Salasky

      IN THE SUPERIOR COURT OF THE STATE OF DELAWARE

STATE OF DELAWARE                   )
                                    )
            v.                      )     I.D. No. 1109012491
                                    )
DAVID SALASKY,                      )
                                    )
            Defendant.              )

                         Submitted: December 4, 2023
                         Decided: December 14, 2023

  Upon Defendant David Salasky’s Motion for Reconsideration and Request for
                              “New Counsel”
                                 DENIED

                                   ORDER




Andrew Vella, Esquire, Chief of Appeals, DEPARTMENT OF JUSTICE, 820
North French Street, Wilmington, DE 19801, Attorney for State of Delaware.

David Salasky, SBI # 416154/T-94291, c/o Massachusetts Department of
Correction @ SBCC c/o Harvard Road, P.O. Box 8000, Shirley, MA 01464-8000
Defendant, pro se.

WHARTON, J.
      This 14th day of December, 2023, upon consideration of Defendant David

Salasky’s (“Salasky”) Motion for Reconsideration and the record in this matter, it

appears to the Court that:

      1.     On October 27, 2023, this Court denied Salasky’s (“Salasky”) Motion

Seeking Removal of Protective Order Applied by the Superior Court in the Above

Case in Order for Defendant to Access Remaining Case/Work File Needed to Pursue

Case Relief in in [sic] Lieu of Post-Conviction Relief in Supreme Court Case # 492,

2022 (“Motion to Remove Protective Order”); Motion to Withdraw Counsel of

Record: DE Public Defender’s Office (“Motion to Withdraw Counsel”); Motion for

Post Conviction Touch DNA Access Relief and Remedy (“Motion for DNA”); and

Motion for “Murder Book” or “File,” (Motion for Murder Book”).1

      2.     Salasky did not appeal that decision. Instead, he has filed a Motion for

Reconsideration of the Court’s determination to deny his Motion to Withdraw

Counsel as moot.2 He also seeks new counsel.3

      3.     In denying all of Salasky’s motions, this Court referenced the Delaware

Supreme Court’s most recent comments affirming an earlier decision of this Court:

             (1) In September 2013, the appellant, David Salasky,
             pleaded guilty but mentally ill to two counts of first-degree
             murder, four counts of possession of a deadly weapon
             during the commission of a felony, and related
             offenses. In January 2014, the Superior Court

1
  State v. Salasky, 

 (Del. Super. Ct. Oct. 27, 2023).
2
  Mot. for Reconsideration, D.I. 242.
3
  

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              sentenced Salasky to two life sentences plus a term of
              years.

              (2) In October 2017, Salasky filed a motion for
              postconviction relief under Superior Court Criminal Rule
              61 seeking to set aside his guilty plea. The Superior Court
              denied the motion in February 2018. Although the motion
              was untimely, the Superior Court nevertheless considered
              its merits and found, among other things, that Salasky’s
              plea was made knowingly and voluntarily. Salasky did not
              appeal. Between March 2019 and April 2022, Salasky
              filed four more motions seeking to set aside his guilty plea,
              all of which were denied.

              (3) On November 28, 2022, Salasky filed another
              motion to set aside his guilty plea. The Superior Court
              denied it, and this appeal followed.4

         4.   With respect to Salasky’s Motion to Withdraw Counsel, this Court

wrote:

              Motion to Withdraw Counsel. In this motion, Salasky
              states that there are and have been irreconcilable
              differences between him and the Public Defender’s Office.
              He wants that office removed as his attorneys.5 But, the
              Office of the Public Defender has not been representing
              Salasky at least since he filed his pro se first
              postconviction relief motion in 2017. In reality though,
              that office’s representation of Salasky ended when he did
              not appeal his plea and sentence in 2014. Therefore the
              Motion to Withdraw Counsel is DENIED as MOOT.6

         Salasky’s present Motion is at various times a complaint about the

effectiveness of his prior counsel regarding their failure to file a direct appeal and



4
  Salasky v. State, 

 at *1 (Del. Sep. 26, 2023).
5
  

6
  Salasky v. State, 

, at *2.
                                           3
postconviction relief motions and a complaint about the location where he currently

is incarcerated “in the backwoods state of Massachusetts, in a level 6 facility.”7 The

location of his incarceration, he alleges, is a violation of his plea agreement.8 He

does not address the standard a court employs when considering reconsideration

motions, nor does he address why the Court should consider the Office of Defense

Services to be his current counsel.

      5.     Reconsideration under Superior Court Civil Rule 60, made applicable

by Superior Court Criminal Rule 57(d), allows the Court to relieve a party or a

party’s representative from a final order for: (1) mistake, inadvertence, surprise, or

excusable neglect; (2) newly discovered evidence; (3) fraud; (4) a void judgment;

(5) a satisfied, released, or discharged judgment or reversed judgment upon which

the challenged judgment was based; and (6) any other reason justifying relief.9

      6.     Delaware has adopted an “extraordinary circumstances” test for

granting relief under Rule 60(b)(6).10 Salasky has not met that standard, nor even

attempted to meet that standard. Instead, he has argued that the merits of what more

properly might be described as a postconviction relief claim and a request for

counsel.




7
  D.I. 242.
8
  

9
  Superior Court Civil Rule 60.
10
   Jewell v. Div. of Soc. Servs. 

 (Del.1979).
                                          4
      7.    As the Court observed when it denied Salasky’s Motion to Withdraw

Counsel, it is unnecessary to discharge the Office of Defense Services because that

office has not represented Salasky for years. Once representation is undertaken, it

does is not last in perpetuity. There was no error in the Court’s denial as moot of

Salasky’s Motion to Withdraw Counsel.

      8.    The Court further determines that Salasky is not entitled to the

appointment of counsel pursuant to Rule 61(e)(5).

      THEREFORE, Salasky’s Motion for Reconsideration and Request for

“New Counsel” is DENIED.

   IT IS SO ORDERED.



                                                    /s/ Ferris W. Wharton
                                                     Ferris W. Wharton, J.




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