IN THE SUPERIOR COURT OF THE STATE OF DELAWARE
STATE OF DELAWARE )
)
V. ) I.D. NO. 1704003730A
)
SYLVESTER GOULD, )
)
Defendant. )
Decided: October 29, 2021
Submitted: July 12, 2021
ORDER
This 29th day of October 2021, upon consideration of Defendant’s Motion for
Postconviction Relief (“Rule 61”), it appears to the Court that:
1. Sylvester Gould was indicted by the New Castle County Grand Jury on
charges of Murder 1st degree, Home Invasion, Robbery 1st degree, and various
weapons offenses. The indictment stemmed from an incident in April of 2016 during
which Gould and another man, Jamar Waters, entered an occupied residence in
Townsend, Delaware and confronted the occupants, one of whom was fatally shot
during the encounter.
2. The evidence against Gould included his being identified by the
surviving occupant of the dwelling when it was invaded. A second witness was
present and recognized him by voice. The perpetrators were persons familiar to both
surviving witnesses and it would appear that the victimized residence was not chosen
1
at random. In addition, historical cell site location information placed Gould’s cell
phone at the scene at the time of the crime.
3. Gould was represented by private counsel, attorney Joseph Benson.
After the usual discovery and pretrial matters, Gould tendered a guilty plea to
Robbery 1st degree, Conspiracy 2d degree and one firearms charge. On March 6,
2020, as requested by the State, the Court imposed a sentence of 8 years
imprisonment followed by reduced levels of supervision.
4. As a quite separate matter, Gould was a probationer at the time of his
arrest on these charges, having previously pled guilty in 2016 to, inter alia, burglary
3d degree and tampering with physical evidence.1 In April, 2018, the Court
sentenced him to 1 year in prison for violating that probation. Mr. Gould appealed
his sentence on the VOP charges to the Delaware Supreme Court. 2 Notably, he did
not appeal the sentence for the charges that he attacks here in this Rule 61. The VOP
appeal was ultimately dismissed by the Supreme Court because Gould did not file
an opening brief.
5. Rule 61 contains an exacting procedure before the merits of a motion
are to be considered. Motions must be filed within 1 year of the date the conviction
becomes final.3 “Finality” of a conviction is specified by the rule:
1
State v. Gould, JIC No. 1607021540
2
Gould v. State, No. 457, 2018
3
D.R.Crim.P. Rule 61(i)(1)
2
A judgment of conviction is final for the purpose of this rule as follows:
(1) If the defendant does not file a direct appeal, 30 days after the
Superior Court imposes sentence;
(2) If the defendant files a direct appeal or there is an automatic
statutory review of a death penalty, when the Supreme Court issues a
mandate or order finally determining the case on direct review; or
(3) If the defendant files a petition for certiorari seeking review of the
Supreme Court's mandate or order, when the United States Supreme
Court issues a mandate or order finally disposing of the case on direct
review.
6. Here, the Superior Court imposed sentence on March 6, 2020. 30 days
thereafter is April 6, 2020. A Rule 61 collateral attack on the conviction must have
been filed by April 6, 2021. Gould’s Rule 61 motion, which he signed and mailed
on May 26, 2021, was filed with the Court on June 2, 2021. His motion was untimely
under Rule 61(m)(1).
7. Gould’s ill-fated appeal of his probation violation was dismissed by the
Supreme Court by Order dated January 19, 2019.4 The mandate of that ruling was
entered on February 2, 2019. A Rule 61 challenging the VOP finding would have
to have been filed by February 2, 2020. Thus, even if we tortured the record and
presumed Gould was simply mistaken about which case was which, the Rule 61 was
untimely under Rule 61(m)(2).
8. Notwithstanding that Gould’s motion is procedurally barred, the Court
has reviewed the motion on its merits. This was a guilty plea case in which Mr.
4
Gould v. State, No. 457, 2018
3
Gould makes complaints of harsh treatment by his attorney and counsel’s failure to
investigate, although exactly what he failed to investigate is unstated. The motion
is bereft of any suggestion that Gould is not guilty of the offenses charged or that
kinder treatment by his lawyer or further investigation would have yielded any
evidence that he is factually innocent of the charge. Unconvinced as the Court is
that “(iii) granting the motion would result in vacatur of the judgment of conviction
for which the movant is in custody,”5 The Court is duty bound to dismiss Mr.
Gould’s Rule 61 motion.
IT IS SO ORDERED.
Resident Judge Charles E. Butler
5
Rule 61(e)(3)(iii).
4