Ross v. State, 310,1990

• Decision Date: 04 December 1990
• Docket Number: No. 310,1990,310,1990
• Citation: 588 A.2d 1142
• Parties: James Lee ROSS, Defendant Below, Appellant, v. STATE of Delaware, Plaintiff Below, Appellee. . Submitted:
• Court: Supreme Court of Delaware

Page 1142

588 A.2d 1142

James Lee ROSS, Defendant Below, Appellant, v. STATE of Delaware, Plaintiff Below, Appellee.

No. 310,1990.

Supreme Court of Delaware.

Submitted: Dec. 4, 1990.

Decided: Feb. 22, 1991.

Superior Court, Kent County.

AFFIRMED.

Before CHRISTIE, Chief Justice, and HORSEY and, HOLLAND, Justices.

ORDER

This 22nd day of February, 1991, it appears to the Court that:

(1) Pursuant to Supreme Court Rule 25(a), the State moves to affirm the judgment of the Superior Court on the ground that it is manifest on the face of the opening brief that the appeal is without merit.

(2) Appellant, James Lee Ross, was convicted of three counts of robbery in the first degree, following a June, 1987 jury trial in the Superior Court during which he appeared pro se at his own request. He was sentenced to three consecutive terms of ten years' imprisonment. On direct appeal an attorney was appointed to represent him. This Court affirmed his convictions and sentence under Supreme Court Rule 26(c). Ross v. State, Del.Supr., No. 284, 1987, Christie, C.J. (Sept. 28, 1988) (ORDER). Ross in November 1988 applied for postconviction relief under Superior Court Criminal Rule 61. The Superior Court summarily denied that motion, and on Ross's appeal, the decision was affirmed. Ross v. State, Del.Supr., No. 514, 1988, Moore, J. (Feb. 23, 1989) (ORDER) (previously adjudicated claim barred under former Super.Ct.Cr.R. 35(a)).

(3) In March 1990, Ross, once again acting pro se, filed a second application for postconviction relief, contending that he had not validly waived counsel at trial and that appellate counsel had been constitutionally ineffective by failing to raise on direct appeal the question of Ross's waiver of counsel at trial. The Superior Court, relying on Superior Court Criminal Rule 61(i)(2), summarily denied the motion, and Ross has appealed.

(4) Appellant addresses the substance of the two issues: validity of his waiver of counsel at trial and ineffective assistance of counsel on direct appeal. Nevertheless, he has failed to overcome a procedural bar to each issue.

Ross's main point concerning the validity of his waiver of assistance of counsel at trial is now barred by Superior Court Criminal Rule 61(i)(2) because he has had two previous opportunities to raise the issue. In his direct appeal to this Court in 1988, Ross raised at least 15 issues. He raised two more issues in his first motion for postconviction relief. It is settled Delaware law that an applicant is required to include in a postconviction motion all grounds for relief available to him. Super.Ct.Crim.R. 61(b)(2). Barr v. State, Del.Supr., No. 30, 1990, Christie, C.J. (Feb. 14, 1990) (ORDER); Younger v. State, Del.Supr., 580 A.2d 552, 554 (1990); Robinson v. State, Del.Supr., 562 A.2d 1184, 1185 (1989).

Ross's contention of ineffective assistance of counsel on direct appeal was included in his first motion for postconviction relief, and this Court found it to be without merit. Ross v. State, Del.Supr., No. 514, 1988, Moore, J. (Feb. 23, 1989) (ORDER). Therefore this issue is now barred by Superior Court Criminal Rule 61(i)(4) as a formerly adjudicated claim. See Collins v. State, Del.Supr., No. 25, 1987, Christie, C.J. (April 13, 1987) (ORDER).

(5) In order for Ross to prevail in his effort to once again have this Court consider the constitutionality of his convictions, he must show either a) that reconsideration is warranted in the interest of justice, Super.Ct.Cr.R. 61(i)(2), or b) that a miscarriage of justice occurred, Super.Ct.Cr.R. 61(i)(5). He has failed on both these points.

(a) Ross has not shown any interest of justice which warrants consideration of his claim of ineffective waiver of counsel at trial. Super.Ct.Cr.R. 61(i)(2). In support of his current motion claiming invalid waiver of counsel at trial and ineffective assistance of counsel on appeal, Ross looks to case law decided before his first motion for postconviction relief. See McMahon v. Fulcomer, 821 F.2d 934 (3d Cir.1987) (waiver of counsel); Evitts v. Lucey, 469 U.S. 387, 105 S.Ct. 830, 83 L.Ed.2d 821, reh'g denied 470 U.S. 1065, 105 S.Ct. 1783, 84 L.Ed.2d 841 (1985) (effective assistance of counsel); Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674, reh'g denied, 467 U.S. 1267, 104 S.Ct. 3562 (1984) (effective assistance of counsel). In addition, the facts upon which Ross bases his present claims were available to him at the time of his first motion for postconviction relief. He knew both that he had waived representation by counsel at trial and that appellate counsel had not presented this issue on direct appeal. See Mays v. Balkcom, 631 F.2d 48, 51-52 (5th Cir.1980). Since the relevant case law and facts were available at the time of appellant's prior motion for postconviction relief, Rule 61(i)(2) bars consideration of Ross's current motion because of his...