State v. Roten
Decision Date | 25 July 2011 |
Docket Number | Def. ID# 0401005180 |
Parties | State of Delaware v. Ben Roten. |
Court | Delaware Superior Court |
JUDGE
SUSSEX COUNTY COURTHOUSE
GEORGETOWN, DE 19947
Ben R. Roten
SBI# 0052
James T. Vaughn Correctional Center
1181 Paddock Road
Smyrna, DE 19977
Dear Mr. Roten:
Pending before the Court is a motion which defendant Ben Roten ("defendant") has filed pursuant to Superior Court Criminal Rule 61 arguing that he is entitled to a vacation of his guilty plea on the ground that his double jeopardy rights have been violated. This is my decision denying the pending motion.
Defendant was arrested in January, 2004, on charges of kidnapping in the first degree; assault in the first degree in violation of 11 Del. C. § 613(a)(2);1 aggravated menacing;2 andrefusing to authority to take photos and fingerprints.
The record3 shows the following. Defendant assaulted the victim, stopped several times,and resumed assaulting her. The attacks began late on the evening of January 6, 2004, and continued into the early morning hours of January 7, 2004. He started assaulting her with his bare hands and after he had his arm around her neck, she lost consciousness. When she came to, he was still beating her. He stopped and he had a telephone conversation with his mother and told her he had just beat the victim severely. The victim attempted to leave and he told her he would kill her. He resumed beating her. The subsequent events are set forth in the affidavit of probable cause:
Thus, twice the beatings stopped and resumed. The first time was when defendant stopped and talked with his mother on the telephone. The second time was when the victim thought the defendant had fallen asleep. Around 4:00 a.m., the victim attempted to escape and got outside. Defendant caught her, threatened to kill her while making a slashing motion with aknife, dragged her back inside the residence, and beat her again. The beatings resulted in her losing consciousness and suffering a closed head injury; a brain contusion; multiple complex facial fractures, including a left maxillary sinus fracture, orbital fracture, zygomatic fracture, and nasal bone fractures. Defendant nearly beat her to death.4
In March, 2004, the Grand Jury indicted defendant on a number of charges, including attempted murder in the first degree (count 2) and aggravated menacing (count 3).5 On August 6, 2004, defendant pled guilty to the charge of assault in the first degree in violation of 11 Del. C. § 613(a)(3),6 a lesser included offense of the attempted murder in the first degree charge, and to thecharge of aggravated menacing.7
In order for an assault in the first degree to have been committed, defendant must have recklessly engaged in conduct which created a substantial risk of death to the victim and thereby caused serious physical injury to the victim. These elements were established after the first onslaught described above. Much later, after the beatings stopped, the victim fled and defendant used a knife to intimidate or regain control of her. Defendant admitted to using the knife when he pled guilty to the aggravated menacing charge, despite what he has otherwise contended since entering the plea. The guilty plea reflects defendant admitted his guilt to the separate events which occurred. By entering the plea, he gained the benefit of the bargain, as he was facing a penalty of life imprisonment.
On June 1, 2011, defendant filed his pending motion.8 He argues that his guilty plea isinvalid as a violation of his double jeopardy rights since aggravated menacing is a lesser-included offense of assault in the first degree.
Defendant is attempting to stand the law on its head. He could have tested the factual context of the State's case at trial and could have pursued a double jeopardy claim. However, he waived that right by entering into his plea agreement. Where a defendant has entered a plea agreement knowingly and voluntarily, that defendant has gained the benefit of the bargain of the plea and he has waived the right to pursue a double jeopardy claim pursuant to postconviction relief or pursuant to a motion to correct an illegal sentence. Evans v. State, 2011 WL 1758828, *2 (TABLE); Benge v. State, 945 A.2d 1099, 1101 (Del. 2008);9 Hall v. State, 937 A.2d 139, 2007 WL 3170467, *1 (Del. Oct. 30, 2007)(TABLE); Bowers v. State, 933 A.2d 1249, 2007 WL 2359553 (Del. Aug. 20, 2007) (TABLE).
Even if the Court ignored the well-established law which deems his double jeopardy claims to have been waived and if it considered defendant's arguments, the Court would conclude there clearly is no substantive merit to defendant's double jeopardy argument as it pertains to his sentencing. Bowers v. State, supra. As the Superior Court recently explained in State v. Johns, 2011 WL 2750749, *2 (Del. Super. July 12, 2011):
This was not a situation where the defendant committed a single offense and was charged with multiple crimes for that one offense. Instead, as the record establishes, he committed separate and distinct crimes against the victim: he beat her; he stopped the beatings; he resumed the beatings and stopped; later, when he caught her after her escape, he threatened to kill her while exhibiting a knife; and thereafter, he took her back inside and resumed beating her. The assault in the first degree was a separate crime from the aggravated menacing and thus, separately punishable. Bowers v. State, supra; State v. Johns, supra. Defendant pled guilty to the separate crimes. There is no basis for his argument of a double jeopardy violation and this argument fails.Bowers v. State, supra.
Thus, for the foregoing reasons, defendant's pending motion is denied. IT IS SO ORDERED.
Very truly yours,
Richard F. Stokes
cc: Prothonotary's Office
Melanie C. Withers, DAG
1. The charge of assault in the first degree- intentionally disfigure destroy amputate disable (Criminal Action No. 04-01-0385) read:
BEN ROTEN, on or about the 7th day of JANUARY, 2004, in the County of SUSSEX, State of Delaware, did intentionally disfigure - seriously-and- permanently disable-permanently BILLIE DOWNES. To wit by fracturing the bones of her face.
The applicable statutory provision, 11 Del. C. § 613(a)(2), provided:
2. The charge of aggravated menacing (Criminal Action No. 04-01-0386) read:
BEN ROTEN, on or about the 7th day of JANUARY, 2004, in the County of SUSSEX, State of Delaware, did by displaying what appears to be a deadly weapon, intentionally place BILLIE DOWNES in fear of imminent physical injury, to wit: STABBED AT HER WITH A KNIFE SAYING HE WOULD KILL HER.
The applicable statutory provision, 11 Del. C. §602(b), provided in pertinent part as follows:
A person is guilty of aggravated menacing when by displaying what appears to be a deadly weapon that person intentionally places another person in fear of imminent...
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