Brewer v. State

Court Below-Superior Court of the State of Delaware, in and for Sussex County Cr. ID No. 1009018564

Before HOLLAND, VALIHURA, and VAUGHN, Justices.

ORDER

KAREN L. VALIHURA, JUSTICE.

This 30th day of July 2015, upon consideration of the appellant's opening brief, the appellee's motion to affirm, and the record below, it appears to the Court that:

(1) The appellant, Phillip Brewer, filed this appeal from the Superior Court's denial of his second motion for postconviction relief under Superior Court Criminal Rule 61 ("Rule 61"). The State of Delaware has filed a motion to affirm the judgment below on the ground that it is manifest on the face of Brewer's opening brief that his appeal is without merit.[1] We agree and affirm.

(2) On April 27, 2011, Brewer resolved charges in three different cases by pleading guilty to Possession with Intent to Deliver Cocaine, Maintaining a Vehicle for Keeping Controlled Substances, Resisting Arrest with Force, and Tampering with Physical Evidence. Brewer was sentenced to a total of twenty-seven years of Level V incarceration, to be suspended after serving twenty mandatory years as a habitual offender for decreasing levels of supervision. Brewer did not file a direct appeal.

(3) On May 2, 2012, Brewer filed his first motion for postconviction relief under Rule 61. Brewer contended that his counsel was ineffective because he did not communicate with him during the sentencing proceeding, he did not convey the sentencing range correctly, he failed to investigate and develop mitigating evidence for sentencing, and he failed to argue that Brewer was eligible for good time credit. After receiving a response from Brewer's former counsel, the Superior Court denied Brewer's motion for postconviction relief as untimely under Rule 61(i)(1) and without merit. On appeal, this Court concluded that Brewer's motion for postconviction relief was timely, but affirmed the Superior Court's holding that Brewer's claims were without merit.[2]

(4) On January 21, 2015, Brewer filed his second motion for postconviction relief. Brewer argued that: (i) the State's failure to disclose misconduct at the Office of Chief Medical Examiner ("OCME") while his case was pending violated his due process rights; (ii) the State's failure to disclose misconduct at the OCME violated his right to cross-examine the witnesses against him; (iii) the State's failure to disclose evidence of misconduct at the OCME misled him regarding the integrity of the chain of custody and the analysis of the suspected drugs; (iv) the tests and examinations performed by the forensic chemist failed to satisfy the Daubert/Nelson requirements for admissibility of scientific evidence; and (v) his former counsel was ineffective for failing to investigate the State's evidence and misjudging the reliability and admissibility of the OCME report. On February 13, 2015, the Superior Court denied the motion, holding that Brewer's claims were untimely and repetitive under Rule 61(i) and, alternatively, without merit based upon Brewer's admissions during his guilty plea colloquy. On February 23, 2015, the Superior Court denied Brewer's motion for reargument. This appeal followed.

(5) We review the Superior Court's denial of postconviction relief for abuse of discretion and questions of law de novo.[3] The procedural requirements of Rule 61 must be considered before any substantive issues are addressed.[4] In his opening brief, Brewer argues that the Superior Court erred in denying his motion for postconviction relief because he pled colorable claims of a miscarriage of justice due to a constitutional violation that undermined the fairness of the proceedings under Rule 61(i)(5). Brewer specifically argues that impermissible government conduct (misconduct at the OCME) rendered his guilty plea involuntary because he would not have pled guilty had the State disclosed the problems at the OCME. We conclude that the Superior Court did not err in denying Brewer's second motion for posconviction relief.

(6) First, the Rule 61(i)(5) language that Brewer relies upon did not apply to the second motion for postconviction relief he filed on January 21, 2015. Effective June 4, 2014, Rule 61 provided:

(2) Second or subsequent postconviction motions. A second or subsequent motion under this rule shall be summarily dismissed, unless the movant was convicted after a trial and the motion either:

(i) pleads with particularity that new evidence exists that creates a strong inference that the movant is actually innocent in fact of the acts underlying the charges of which he was convicted; or

(ii) pleads with particularity a claim that a new rule of constitutional law, made retroactive to cases on collateral review by the United States Supreme Court or the Delaware Supreme Court, applies to the movant's case ...

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