IN THE SUPERIOR COURT OF THE STATE OF DELAWARE

IN AND FOR NEW CASTLE COUNTY

STATE OF DELAWARE )

)

) 

v. ) I.D. 1107020432

) 

)

KEVIN M. TOWNSEND, )

)

Defendant. )

ORDER 

1. In 2012 Defendant pled guilty to Robbery in the First Degree, 

Possession of a Firearm During the Commission of a Felony and 

Conspiracy in the Second Degree. He was sentenced to twenty-five 

years, suspended after five years for the robbery conviction and five years 

for the weapons conviction. He also was sentenced to decreasing levels of 

probation for his robbery conviction and probation for his conspiracy 

conviction. His sentence also mandated he undergo certain specified 

drug treatment programs. In sum, Defendant was sentenced to ten years 

of non-suspended Level 5 time.

2. In March 2014 Defendant filed the instant Rule 61 motion 

seeking post-conviction relief. In his pro se motion he contended that he 

was misled by his attorney and the prosecutor into believing the court 

would sentence him to no more than eight years of non-suspended Level 

5 time. Another Judge of this court appointed counsel for Defendant. 
2

After reviewing the record, appointed counsel moved to withdraw because 

he could find no arguable issues to present in a Rule 61 motion.

3. The gist of Defendant’s motion is that “my attorney and the 

prosecution agreed to a certain amount of time and I got more.” It is 

apparent, therefore, that the defendant is seeking to withdraw his guilty 

plea. Where, as here, the defendant has been sentenced, any motion to 

withdraw a guilty plea must be brought under Criminal Rule 61.1 

Accordingly the court must first decide whether Defendant’s motion is 

procedurally barred. “It is well-settled that the Superior Court must 

address the procedural requirements of Rule 61 before considering the 

merits of a postconviction motion.”2 

4. Rule 61 provides that a “motion for postconviction relief may 

not be filed more than one year after the judgment of conviction is final.”3 

In the instant case Defendant’s conviction became final in 2012, and he 

did not file this motion until 2014. It is therefore procedurally barred. 

The exceptions to the procedural bars in Criminal Rule 61 provide no

help to Defendant. The only exception which is even arguably applicable 

here is Rule 61(i)(5) which provides that the “bars to relief in paragraphs 

(1), (2), (3), and (4) of this subdivision shall not apply. . .to a claim that 

 1

 Superior Court Criminal Rule 32(d)(“If a motion for withdrawal of a plea of guilty or nolo contendere is 

made before imposition or suspension of sentence or disposition without entry of a judgment of conviction, 

the court may permit withdrawal of the plea upon a showing by the defendant of any fair and just reason. 

At any later time, a plea may be set aside only by motion under Rule 61.”) 

2

 Evans v. State, 2014 WL 4104785 (Del.)

3

 Superior Court Criminal Rule 61(i)(4).
3

satisfies the pleading requirements of subparagraphs (2)(i) or (2)(ii) of 

subdivision (d) of this rule.” Defendant’s motion does not satisfy that 

requirement. Rule 61(d)(2) provides that a motion for postconviction relief 

shall not be dismissed if either the defendant 

(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 and renders the 

conviction or death sentence invalid. 

Here Defendant has failed to plead any new evidence suggesting he was 

innocent, much less new evidence sufficient to create a strong inference 

he is actually innocent. Further he has not alleged any new rule of 

constitutional law which is applicable to his case. Consequently his 

motion will be summarily dismissed.

5. The court notes in passing that the underlying premise of 

Defendant’s motion—that he was mislead into believing he would receive 

the recommended sentence—is untrue. Defendant, who was sworn 

immediately before the plea colloquy, acknowledged he was aware he 

could receive more than the recommended eight years at Level 5:

THE COURT: Now, did Mr. O’Connell explain to 

you that if I accept your plea, the Court must 

sentence you to a minimum of six years in jail?

DEFENDANT: Yes, sir.
4

THE COURT: And did he explain to you that the 

Court may send you to jail for up to 52 years?

DEFENDANT: Yes.

THE COURT: Did he explain to you that the 

Court is not obligated to follow the 

recommendation either of your attorney or the 

State’s attorney?

DEFENDANT: Yes.

THE COURT: Did anyone promise you what 

sentence the Court will impose, if I accept your 

plea?

DEFENDANT: No sir.

THE COURT: Has anyone promised you 

anything at all in exchange for your plea?

DEFENDANT: No.

WHEREFORE, the motion of appointed counsel to withdraw is 

GRANTED and Defendant’s Motion for Postconviction Relief is 

DISMISSED.

 

Dated: February 5, 2015 John A. Parkins, Jr.

 Superior Court Judge

oc: Prothonotary

cc: Kevin M. Townsend, SBI 514718, HRYCI, Wilmington, Delaware

 Joseph S. Grubb, Esquire, Department of Justice, Wilmington, 

 Delaware

 Christopher D. Tease, Esquire, Wilmington, Delaware