IN THE SUPREME COURT OF THE STATE OF DELAWARE

MICHAEL L. CHURCH, § § No. 463, 2015 Defendant Below, § Appellant, § Court Below: § Superior Court of the v. § State of Delaware § STATE OF DELAWARE, § Cr. ID No. 1101004755 § Plaintiff Below, § Appellee. §

Submitted: October 26, 2015 Decided: January 4, 2016

Before HOLLAND, VALIHURA, and VAUGHN, Justices.

ORDER

This 4th day of January 2016, upon consideration of the appellant’s

opening brief, the appellee’s motion to affirm under Supreme Court Rule

25(a),1 and the Superior Court record, it appears to the Court that:

(1) The appellant, Michael L. Church, has appealed the Superior

Court’s August 18, 2015 summary dismissal of his second motion for

postconviction relief under Superior Court Criminal Rule 61.2 The State has

moved to affirm the Superior Court judgment on the ground that it is

1 The appellant requested permission to file a response to the motion to affirm. The motion is denied. Under Supreme Court Rule 25(a), no response to a motion to affirm is permitted unless requested by the Court. The Court finds no good cause to request a response in this case. 2 State v. Church, 2015 WL 5120862 (Del. Super. Aug. 18, 2015). manifest on the face of Church’s opening brief that the appeal is without

merit.

(2) It appears that Church was charged in a thirteen-count

indictment with having committed multiple sex offenses between August

and December 2010. On September 20, 2011, Church pled guilty to one

count of Continuous Sexual Abuse of a Child and one count of Sexual

Abuse of a Child in the First Degree. In exchange for the guilty plea, the

State agreed to dismiss eight counts of Sexual Abuse of a Child in the First

Degree and three counts of Sexual Abuse of a Child in the Second Degree.

(3) Prior to sentencing, Church filed a motion to withdraw the

guilty plea. Church claimed that his defense counsel was ineffective and

that he felt “threaten[ed] and forced” into taking the plea. The Superior

Court denied the motion3 and later denied Church’s motion for

reconsideration.4 The Superior Court found that the guilty plea “was not the

product of threat or misconduct by defense counsel,” and that the plea was

“knowing, voluntary and intelligent.”5 The Superior Court determined that

Church pled guilty “because he is guilty and he did not want to risk the

consequences of the jury trial that would have begun immediately, had he

3 State v. Church, 2012 WL 1413978 (Del. Super. Feb. 15, 2012). 4 State v. Church, 2012 WL 1415763 (Del. Super. Mar. 2, 2012). 5 State v. Church, 2012 WL 1413978, at *2 (Del. Super. Feb. 15, 2012).

2 not pleaded guilty.”6 On March 9, 2012, the Superior Court sentenced

Church to a total of thirty-five years at Level V, suspended after twenty-two

years (seventeen years minimum mandatory), for Level IV work release and

probation. Church did not file a direct appeal.

(4) On March 6, 2013, Church filed a motion for postconviction

relief under Superior Court Criminal Rule 61. Church claimed that his

defense counsel’s failure to investigate the case, develop evidence, suppress

the charges and develop a trial strategy, rendered the guilty plea involuntary.

(5) To prevail on a claim of ineffective assistance of counsel in the

context of a guilty plea, a defendant must demonstrate that his defense

counsel’s conduct fell below an objective standard of reasonableness, and

that there is a reasonable probability that, but for his counsel’s errors, the

defendant would not have pled guilty but would have insisted on going to

trial.7 In this case the Superior Court summarily dismissed Church’s second

postconviction motion after finding that Church’s claims of ineffective

assistance of counsel were without merit.8 The Superior Court found that:

[I]f the case had gone to trial on September 20, 2011, Defendant probably would have been found guilty as charged or, at least, guilty of one 6 Id. 7 Albury v. State, 551 A.2d 53, 58-60 (Del. 1988) (citing Hill v. Lockhart, 474 U.S. 52, 58-60 (1985)). 8 State v. Church, 2013 WL 3422490 (Del. Super. June 25, 2013). 3 unlawful sexual intercourse charge; Defendant certainly would have not been acquitted. If Defendant had not pleaded guilty, he would be serving at least one life sentence, probably more, rather than 22 years.9

Also, the Superior Court found that Church’s claims “concern[ed] things that

happened before he pleaded guilty and, because his guilty plea was knowing,

voluntary and intelligent, [Church] waived those claims when he pleaded

guilty.”10 Church did not file an appeal from the denial of his first motion

for postconviction relief.

(6) In September 2013, Church filed a motion for appointment of

counsel. The Superior Court denied the motion to appoint counsel.11 Nearly

one year later when Church filed a motion for reconsideration, the Superior

Court denied that motion as well.12

(7) Church filed an appeal from the denial of his motion for

reconsideration of counsel. The appeal was dismissed on the basis that the

denial of counsel was not appealable as a collateral order before the entry of

a final order.13

9 Id., at *2. 10 Id., at *1. 11 State v. Church, 2013 WL 5786176 (Del. Super. Sept. 23, 2013). 12 See docket at 43, State v. Church, Del. Super., Cr. ID No. 1101004755 (Oct. 6, 2014). 13 Church v. State, 2015 WL 1243731 (Del. Mar. 17, 2015).

4 (8) Undaunted, on June 4, 2015, Church filed a second pro se

motion for postconviction relief and a supporting memorandum. Church’s

second postconviction motion repeated verbatim the claims raised in his first

postconviction motion, namely that the alleged ineffectiveness of his defense

counsel rendered the guilty plea involuntary. The Superior Court concluded

that the second postconviction motion “presented nothing new” and issued

an order on August 18, 2015, summarily dismissing the motion as

procedurally barred.14 This appeal followed.

(9) The Court has considered the parties’ positions on appeal and

has concluded that the Superior Court did not abuse its discretion when

summarily dismissing Church’s second motion for postconviction relief as

procedurally barred. Summary dismissal was appropriate because the

motion was a successive postconviction motion filed in a guilty plea case.15

The motion was procedurally barred because it was untimely16 and raised

claims that were formerly adjudicated.17

14 State v. Church, 2015 WL 5120862 (Del. Super. Aug. 18, 2015). 15 Del. Super. Ct. Crim. R. 61(d)(2). 16 See Del. Super. Ct. Crim. R. 61(i)(1) (providing that a motion for post-conviction relief must be filed within one year of the final judgment). In Church’s case, in the absence of a direct appeal, the judgment became final thirty days after March 9, 2012, the date the Superior Court imposed sentence. Del. Super. Ct. Crim. R. 61(m)(1). Church did not file his second motion for post-conviction relief until June 4, 2015, well past the one-year time bar. 17 Del. Super. Ct. Crim. R. 61(i)(4).

5 (10) To overcome the procedural bars, Church was required to plead

either (i) the existence of new evidence creating a strong inference that he

was actually innocent; (ii) the existence of a new rule of constitutional law

made retroactive to cases on collateral review rendered his convictions

invalid; or (iii) a viable claim that the Superior Court lacked jurisdiction

over his case.18 In this case, Church’s opening brief on appeal repeats the

grounds for relief presented in his first and second motions for

postconviction relief and supporting memorandum. Church cannot satisfy

any of the pleading requirements to overcome the procedural bars.

NOW, THEREFORE, IT IS ORDERED that the motion to affirm is

GRANTED. The judgment of the Superior Court is AFFIRMED.

BY THE COURT:

/s/ Karen L. Valihura Justice

18 Del. Super. Ct. Crim. R. 61(d)(2), (i)(5).

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