IN THE SUPERIOR COURT OF THE STATE OF DELAWARE

)

STATE OF DELAWARE ) ) I.D. No. 0704004317

v. ) )

LAWRENCE L. MICHAELS

, ) )

Defendant

. )

Submitted: December 8, 2015

Decided: February 29

, 2016

O n Defendant’s Motion for Postconviction Relief

. DENIED

.



## ORDER

Gregory E. Smith

, Esquire, Deputy Attorney General, Department of Justice, Wilmington, Delaware, Attorney for the State

.

Lawrence L. Michaels

, James T. Vaughn Correctional Center, Smyrna

, Delaware

, pro s e

.

COOCH, R.J.

This 29th day of February

, 2016 , upon consideration of Defendant’s

Motion for Postconviction R elief

, it appears to the Court that:

1. On March 7, 2008, Defendant Lawrence Michaels wa s found guilty of one count of R obbery First D egree , as well was nine

other offenses

. 1 On June 27, 2008, Defendant was sentenced to 19 years at Level V with decreasing levels of supervision to

follow. The Supreme Court of Delaware affirmed Defendant’s

1 Verdict Sheet ; D.I. 22 (Mar. 7, 2008).2 conviction and sentence on March 17, 2009

. 2 Defendant then filed a pet ition for a writ of habeas corpus, which the district court denied on February 19, 2013. 3

2. Defendant filed the instant M otion on June 24, 2015

. Defendant only takes issue with his conviction for Robbery First D egree. He does not assert any grounds for pos tconviction relief for any of the other nine convictions for which he is sentenced.

3. Defendant was indicted for Attempted R obbery First D egree on May 7, 2007

. 4 On February 19, 2008

, this Court granted the

State’s motion to amend the charge of Attempted Robbery First Degree to Robbery First D egree. Defendant claims that the amendment indictment violated “both [his] federal and state constitutional rights,” because the amended charge was not brought in front of a grand jury. Defendant asserts that this “Court lacks jurisdiction to require additional elements not issued by the grand jury.” 5 He further asserts that changing the charge from Attempted R obbery First Degree to R obbery First Degree violated Superior Court Criminal Rule 7(e).

4. Under Rule 61(i), a motion for postconviction r elief can be procedurally barred for time limitations, successive motions, procedural defaults, and former adjudications. 6 If a procedural bar exists, the Court will not consider the merits of the postconviction claim unle ss the Defendant can show that the procedural bars are inapplicable.

5. Rule 61(i)(5) provides that consideration of otherwise procedurally barred claims is l imited to claims that the Court lacked jurisdiction, or to a “colorable claim that there was a miscarriage of justice because of a constitutional violation that undermined the fundamental legality, reliability, integrity or

2 Michaels v. State , 970 A.2d 223 ( Del. 2009).

3 Michaels v. Phelps , 924 F.Supp. 566 (D. Del. 2013).

4 Indictment ; D.I. 2 (May 7, 2007).

5 Def.’s Mot. For Postconviction Relief at 1.

6 See Super. Ct. Crim. R. 61(i)(1)

- (4).3 fairness of the proceedings lead ing to the judgment of

conviction.” 7

6. Defendant’s Motion is procedurally barred for several reasons. First, Defendant’s Motion was not timely filed

. Defendant’s

conviction and sentence became final on March 17, 2009. 8

Defendant did not file this M otion until June 24, 2015, more than

six years after his conviction was finalized. Therefore, his claim is procedurally barred under Rule 61(i)(1), because his Motion

exceeds the one

- year time limitation.

7. Defendant’s Motion is also barred under the proce dural default.

Defendant failed to assert that this Court lacked jurisdiction in the proceedings leading up to his judgment of conviction and in his petition for writ of habeas corpus . Defendant has also failed

to demonstrate that he is entitled to relie f from the procedural default. Therefore, Defendant’s Motion is procedurally barred.

8. Finally

, although Defendant claims in his Motion that this Court lacked jurisdiction, his argument is a spurious attempt to overcome the procedural bars of Rule 61(i)( 5). When a defendant asserts a jurisdictional challenge that is meritless, he is

not entitled to consideration of claims at would otherwise be procedurally barred. 9 Therefore, the Court will not address

Defendant’s assert ion because his claim is baseless

.

Therefore, Defendant’s Motion for Postconviction Relief is DENIED

.

IT IS SO ORDERED.

______________________ Richard R. Cooch, R.J.

7 Super. Ct. Crim. R. 61(i)(5).

8 Michaels , 970 A.2d 223 (Del. 2009).

9 Harden v. State , 782 A.2d 264, 2001 WL 791961, at* 1 (Del. Supr. June 28, 2001) (“To

the extend [the defendant] seeks to avoid the procedural bar by characterizing his claims as ‘jurisdictional,’ that effort is unavailing because the claims are baseless.”).4 o c: Prothonotary

cc: Investigative Services