IN THE SUPREME COURT OF THE STATE OF DELAWARE
AUGUSTUS H. EVANS, JR., §
§
Defendant Below- § Nos. 321/546, 2015
Appellant, §
§
v. § Court Below—Superior Court
§ of the State of Delaware,
STATE OF DELAWARE, § in and for Sussex County
§ Cr. ID 0609011528A
Plaintiff Below- §
Appellee. §
Submitted: October 21, 2015
Decided: December 1, 2015
Before HOLLAND, VALIHURA, and SEITZ, Justices.
ORDER
This 1st day of December 2015, upon consideration of the parties’
filings in these two appeals, it appears to the Court that:
(1) On June 22, 2015, the appellant, Augustus Evans, filed a notice
of appeal in No. 321, 2015 from a Superior Court order dated May 15, 2015.
The Superior Court’s order denied Evans’ request for permission to file
multiple motions, including a motion seeking postconviction relief titled
“Motion Under the Law of the Case Doctrine,” as well as a motion for
recusal of the trial judge, a motion for an evidentiary hearing, and a motion
for appointment of counsel. On October 5, 2015, the State of Delaware filed
a motion to affirm the Superior Court’s judgment on the ground that it is
manifest on the face of Evans’ opening brief that appeal No. 321, 2015 is
without merit.
(2) On October 8, 2015, Evans filed a second notice of appeal in
No. 546, 2015 from a Superior Court order dated September 18, 2015. The
Superior Court’s order denied Evans’ motion requesting permission to file a
brief challenging a June 2014 amendment to Superior Court Criminal Rule
61. The Superior Court held that the 2014 amendment did not apply to
Evans; therefore, he lacked standing to challenge it. The Superior Court also
denied Evans’ motion because Evans had exhausted his right to seek
postconviction relief under Rule 61.
(3) The Senior Court Clerk issued a notice to Evans to show cause
why appeal No. 546, 2015 should not be dismissed for this Court’s lack of
jurisdiction to consider an interlocutory appeal in a criminal matter. Evans
filed a response to the notice to show on October 21, 2015, contending that
the Superior Court’s order is a final order. Evans’ response also requests
that his two pending appeals be consolidated. After considering Evans’
response and his motion to consolidate, we hereby discharge the notice to
show cause in No. 546, 2015 and grant Evans’ request to consider these
appeals in a consolidated manner.
2
(4) The record reflects that Evans was convicted by a jury in July
2007 of Assault in the Second Degree, two counts of Possession of a
Firearm During the Commission of a Felony, Aggravated Menacing, and
Resisting Arrest. Evans waived his right to counsel and represented himself
at trial. The Superior Court sentenced him as a habitual offender to a total
period of seventy-nine years at Level V incarceration, to be suspended after
serving seventy-two years in prison for decreasing levels of supervision.
This Court affirmed on direct appeal.1
(5) Since that time, Evans has filed five motions for postconviction
relief under Rule 61. This Court affirmed the Superior Court’s denial of
Evans’ first four Rule 61 motions.2 In its denial of Evans’ fifth motion, the
Superior Court informed Evans that it would not accept any future Rule 61
motions unless Evans first sought and received the trial court’s permission to
file. Evans voluntarily dismissed his appeal (No. 171, 2015) from that order.
1
Evans v. State, 2009 WL 367728 (Del. Feb. 13, 2009).
2
See Evans v. State, 2015 WL 214057 (Del. Jan. 14, 2015) (denying Evans’ fourth
motion for postconviction relief as procedurally barred, applying the June 2014
amendments to Rule 61, and warning Evans that he risked an injunction against future
meritless appeals); Evans v. State, 2014 WL 4104785 (Del. Aug. 19, 2014) (denying
Evans’ third motion for postconviction relief); Evans v. State, 2013 WL 5614265 (Del.
Oct. 10, 2013) (denying Evans’ second motion for postconviction relief); Evans v. State,
2009 WL 3656085 (Del. Nov. 4, 2009) (denying Evans’ first motion for postconviction
relief).
3
(6) Evans now appeals the Superior Court’s orders denying his
requests for permission to file another Rule 61 motion. Although we reject
the Superior Court’s conclusion in its September 18, 2015 order that the
June 2014 amendments to Rule 61 would not apply to Evans’ sixth Rule 61
motion if he were permitted to file one,3 we nonetheless affirm the Superior
Court’s denial of Evans’ requests to file his sixth Rule 61 motion.
(7) Evans has unsuccessfully pursued postconviction relief under
Rule 61 five different times. Evans refuses to accept the Superior Court’s
rulings on his motions. As this Court held in affirming the Superior Court’s
denial of his fourth postconviction motion, Evans is procedurally barred by
Rule 61(d)(2) from filing another motion for postconviction relief unless he
pleads with particularity a claim that (i) new evidence exists that creates a
strong inference that he is actually innocent; or (ii) a new rule of
constitutional law made retroactive to cases on collateral review renders his
convictions invalid.4 Evans’ motions in this case fail to satisfy the
requirements of Rule 61(d)(2). Accordingly, we find no error of law or
3
See Evans v. State, 2015 WL 214057 (Del. Jan. 14, 2015) (finding Evans’ fourth motion
for postconviction relief to be procedurally barred by the June 2014 amendments to Rule
61).
4
Evans v. State, 2015 WL 214057, *1 (Del. Jan. 14, 2015) (citing Del. Super. Ct. R.
61(d)(2) (effective June 4, 2014)).
4
abuse of discretion in the Superior Court’s denial of his requests to file his
sixth Rule 61 motion.
(8) Moreover, we conclude that Evans’ untimely, repetitive, and
frivolous filings constitute an abuse of the judicial process. Thus, the Clerk
of this Court is directed to refuse any future filing from Evans related to
these criminal convictions and sentences unless the filing is accompanied by
the required filing fee or a completed motion to proceed in forma pauperis
with a sworn affidavit containing the certifications required by 10 Del. C. §
8803(e)5 and that motion is first granted by the Court.
NOW, THEREFORE, IT IS ORDERED that the judgment of the
Superior Court is AFFIRMED.
BY THE COURT:
/s/ Karen L. Valihura
Justice
5
10 Del. C. § 8803(e) provides:
When a court finds that a litigant has abused the judicial process by filing
frivolous or malicious litigation, the court may enjoin that litigant from filing future
claims without leave of court. When so enjoined, any future requests to file claims must
be accompanied by an affidavit certifying that:
(1) The claims sought to be litigated have never been raised or disposed of before
in any court;
(2) The facts alleged are true and correct;
(3) The affiant has made a diligent and good faith effort to determine what relevant
case law controls the legal issues raised;
(4) The affiant has no reason to believe the claims are foreclosed by controlled law;
and
(5) The affiant understands that the affidavit is made under penalty of perjury.
5