State v. Whiteman, I.D. 30604628DI

• Court: Superior Court of Delaware
• Writing for the Court: Vivian L. Medinilla Judge
• Parties: STATE OF DELAWARE, v. BENJAMIN F. WHITEMAN, Defendant.
• Docket Number: I.D. 30604628DI
• Decision Date: 18 November 2022

STATE OF DELAWARE,
v.
BENJAMIN F. WHITEMAN, Defendant.

I.D. No. 30604628DI

Superior Court of Delaware

November 18, 2022

Submitted: September 27, 2022

ORDER

Vivian L. Medinilla Judge

AND NOW TO WIT, this 18^th day of November 2022, upon consideration of Benjamin F. Whiteman ("Defendant")'s pro se Motion for Postconviction Relief, the sentence imposed upon Defendant, and the record in this case, it appears to the Court that:

1. In 1987, Defendant pled guilty to Burglary in the Second Degree. After declaring him a habitual offender under 11 Del. C. § 4214(a),^[1] the Court sentenced him to ten years at Level V, suspending seven years of the sentence for decreasing levels of probation.^[2] Defendant was declared a habitual offender though not sentenced as such.^[3] Although the Court could have imposed a harsher sentence,

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Defendant was spared and sentenced to three years in prison.^[4] And he was warned not to re-offend.^[5]

2. In 1989, Defendant was charged with multiple sexual offenses against two young girls, ages three and eight.^[6] After a jury found Defendant guilty of Unlawful Sexual Penetration in the Third Degree, the Superior Court sentenced him to life imprisonment as a habitual offender.^[7] The Supreme Court affirmed Defendant's conviction on direct appeal.^[8]

3. Defendant filed his first and second Motions for Postconviction Relief related to his Burglary sentence under Delaware Superior Court Criminal Rule 61 in 2006 and 2012, respectively. Both Motions were denied by the Superior Court and affirmed by the Supreme Court.^[9]

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4. Defendant has also unsuccessfully filed multiple motions for corrections/modifications of that burglary sentence under Rule 35.^[10]

5. Now, Defendant files this third Motion for Postconviction Relief again challenging his habitual offender status and his plea colloquy related to his burglary sentence.^[11]

6. Since Defendant is not currently in custody for the burglary sentence, he is not entitled to Rule 61 considerations.^[12] Even if applicable, Defendant's

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Motion is also procedurally barred because it is untimely^[13] and successive.^[14] This Court hopes that, if appealed, the Supreme Court enjoins Defendant's future untimely and successive Rule 61 filings without leave of the Court.^[15]

7. For the reasons stated above, Defendant's Motion for Postconviction Relief is SUMMARILY DISMISSED.

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Notes:

^[1] 11 Del. C. § 4214(a) (1987) (current version at 11 Del. C. § 4214(a) (effective July 11, 2018)).

^[2] See Sentence, State v. Benjamin Whiteman, Crim. I.D. No. 30604628DI, D.I. 10 (Del. Super. June 19, 1987).

^[3] See Whiteman v. State, 2013 WL 5346310, 77 A.3d 273 (TABLE). at *1 (Del. Feb. 4, 2013); Whiteman v. State, 2009 WL 3086567, 981 A.2d 1173 (TABLE), at *1 (Del. Sept. 28, 2019).

^[4] Crim. I.D. No. 30604628DI, D.I. 9-10.

^[5] See also Crim. I.D. No. 30604628DI, D.I. 12 ("You have a very long record of misbehavior. You were extremely fortunate to be treated lightly by me. I only hope that when you do get out you commit no other felonious crime because it will mean a life sentence in all probability. Please don't -Motion for reduction denied.").

^[6] The circumstances of these charges are well described by the Delaware Supreme Court: "In February, 1989, Whiteman was living at the home of the parents of two young girls-one age eight, the other age three. On February 19, the parents of the two girls went out to dinner, leaving the children at home with Whiteman. After the parents left, Whiteman and the two girls began watching television. Whiteman asked the older girl to sit on the couch next to him. He then began to rub her leg. Next, he lifted her robe and placed his finger in her vagina. Whiteman then went over to the younger girl and inserted his finger in her vagina. Whiteman threatened to harm the older girl if she told anyone what happened." Whiteman v. State, ...