Nicholson v. State

• Decision Date: 14 September 1990
• Docket Number: 1990,No. 264,264
• Citation: 1990 WL 168266,582 A.2d 936
• Parties: Jesse H. NICHOLSON, Jr., Defendant Below, Appellant, v. STATE of Delaware, Plaintiff Below, Appellee. . Submitted:
• Court: Supreme Court of Delaware

Page 936

582 A.2d 936

Jesse H. NICHOLSON, Jr., Defendant Below, Appellant, v. STATE of Delaware, Plaintiff Below, Appellee.

No. 264, 1990.

Supreme Court of Delaware.

Submitted: Sept. 14, 1990.

Decided: Oct. 3, 1990.

As Amended Dec. 5, 1990.

Superior Court, New Castle County, 578 A.2d 1097.

AFFIRMED.

MOORE, Justice.

Before HORSEY, MOORE and WALSH, Justices.

ORDER

This 3rd day of October, 1990, it appearing that:

1) Pursuant to Supreme Court Rule 25(a), the State has moved to affirm two orders of the Superior Court denying the post-conviction review application of the appellant, Jesse H. Nicholson, Jr., under Superior Court Criminal Rule 61.

2) The appellant pled guilty in the Superior Court on June 13, 1988, to two counts of First Degree Robbery, Second Degree Robbery, Second Degree Assault, and Possession of a Deadly Weapon During the Commission of a Felony. The appellant attempted to withdraw his plea before sentencing on these charges and the Superior Court denied the application after reviewing the transcript of the plea hearing and finding that the appellant "knowingly and intelligently" entered his plea after consulting with his attorney. On October 21, 1988, the Superior Court sentenced the appellant to consecutive jail terms and this Court dismissed Nicholson's appeal of that sentence as untimely. Nicholson v. State, Del.Supr., No. 20, 1989, Horsey, J. (Feb. 1, 1989) (ORDER).

2) Appellant moved to modify his sentence on the weapons offense charge which the Superior Court subsequently denied. Appellant then filed a motion for post-conviction relief pursuant to Superior Court Criminal Rule 61 which challenged his guilty plea. Appellant specifically claimed that the plea was the result of (1) a "coerced confession" (2) "ineffective assistance of counsel" in not being informed of "all options that could be used in his defense" and (3) an unfulfilled plea bargain that the appellant would receive the minimum mandatory sentence. The Superior Court denied the first post-conviction motion and Nicholson did not appeal to this Court. The appellant then filed another motion for post-conviction relief alleging that his plea bargain was the result of ineffective assistance of counsel and challenging his sentence on the weapons offense. The Superior Court similarly rejected this petition pursuant to Superior Court Criminal Rule 61. Nicholson appealed the Superior Court's ruling to this Court which was rejected as premature. Nicholson v. State, Del.Supr., No. 169, 1990, Holland, J. (July 16, 1990) (ORDER). Nicholson then filed a mandamus action to this Court which the Court eventually deemed a valid notice of appeal. In the Matter of Nicholson, Del.Supr., No. 264, 1990, Holland, J. (August 22, 1990) (INTERIM ORDER).

3) The Superior Court correctly denied appellant's ineffectiveness of counsel claims pursuant to Superior Court Criminal Rule 61(i)(2). The Superior Court previously rejected appellant's ineffectiveness of counsel claims in both the motion to withdraw the guilty plea and Nicholson's first post-conviction relief petition. See Super.Ct.Crim.R. 61(i)(4) (grounds for relief formally adjudicated in post-conviction hearing barred unless claim warranted in interest of justice); Younger v. State, Del.Supr., Christie, C.J., slip op., --- A.2d ---- (July 27, 1990). The appellant did not claim that the Court should consider the merits of his appeal in the interests of justice. The appellant did, however, admit that his ineffectiveness of counsel claim was previously adjudicated but claimed that he was entitled to reargue the merits of his case because "the facts supporting this claim has been [sic] redrafted, because the first post-conviction motion filed by movant was inartfully drafted...."

This Court has clearly and unmistakably ruled that, according to Superior Court Criminal Rules 61(b)(2) and 61(i)(2), a defendant must include all available grounds for relief in his first petition for review of an ineffective assistance of counsel claim. If the first petition is incomplete, then this Court will not consider the merits of the second petition unless the appellant can prove either the occurrence of a constitutional violation or that "consideration of the claim is warranted in the interests of justice." See Younger, slip op. at 8-9, --- A.2d ----. See...