IN THE SUPERIOR COURT OF THE STATE OF DELAWARE
STATE OF DELAWARE )
)
v. )
) Case No. 91009844DI
CHRISTOPHER DESMOND )
)
Defendant. )
Submitted: March 28, 2022
Decided: May 4, 2022
ORDER DENYING MOTION FOR POST CONVICTION RELIEF
This 4th day of May, 2022, upon consideration of Defendant’s Sixteenth
Motion for Postconviction Relief, it appears to the Court that:
1. Defendant was convicted in November of 1992, following a jury trial,
of several dozen criminal offenses in connection with a series of armed robberies
of different businesses located in New Castle County, Delaware, which took
place between 1990 and 1991. Defendant’s convictions include ten (10) counts
of Robbery in the First Degree and three (3) counts of Theft. In January of 1993,
Defendant was sentenced to seventy-eight (78) years of Level V incarceration.1
2. Defendant has filed numerous unsuccessful petitions, motions, and
appeals in this Court, the Supreme Court of Delaware, the United States District
Court for the District of Delaware, the Third Circuit Court of Appeals, and the
1
See Desmond v. State, 99 A.3d 226, at *1 (Del. Aug. 1, 2014).
Supreme Court of the United States since his 1992 conviction. These filings have
sought to reduce Defendant’s sentence and overturn his conviction. As recently
as December 2020, this Court denied Defendant’s Fifteenth Motion for Post
Conviction Relief.2
3. Presently before the Court is Defendant’s Request to File a Post
Conviction Motion to vacate the eight (8) counts of robbery in lieu of the United
State Supreme Court’s recent decision Wooden v. United States. 3 This Request
represents Defendant’s sixteenth (16th) attempt to receive relief under Rule 61.
4. Before addressing the substance of Defendant’s claims in the Motion,
the Court must determine whether Defendant’s claim is procedurally barred.
Under Rule 61, a “motion for postconviction relief may not be filed more than
one year after the judgment of conviction is final or, if it asserts a retroactively
applicable right that is newly recognized after the judgment of conviction is final,
more than one year after the right is first recognized by the Supreme Court of
Delaware or by the United States Supreme Court.” Second or subsequent motions
for post-conviction relief under Rule 61 must be summarily dismissed unless
Defendant pleads with particularity (i) that new evidence exists that creates a
strong inference of actual innocence on the part of the Defendant or (ii) pleads
2
See State v. Desmond, 2020 WL 7584973 (Del. Super. Ct. Dec. 21, 2020).
3
142 S.Ct. 1063 (Mar. 7, 2022).
that a new and retroactively applicable rule of constitutional law has been
established by the Supreme Court of Delaware or the United States Supreme
Court which would render Defendant’s sentence invalid.4
5. As previously mentioned, this is Defendant’s sixteenth Rule 61 motion.
As such, Defendant’s Motion must demonstrate that one of the two exceptions to
summary dismissal of secondary or subsequent Rule 61 motions applies in order
to prevail. Defendant’s Motion does not assert that any new evidence in this case
exists.
6. Defendant claims that the second exception to summary dismissal
applies. Defendant argues that Wooden prohibits this Court from imposing
multiple sentences for one single offense as this Court did in Defendant’s case.
However, the Wooden decision addresses not a constitutional requirement, but a
provision of the Armed Career Criminal Act (ACCA) – the occasion
requirement.5 Thus, Wooden establishes no new and retroactively applicable rule
of constitutional law. As to the second requirement, while Wooden does resolve
a split of authority, the decision is inapplicable to Defendant’s sentence as it is
based on a federal statute, not a Delaware criminal law.
4
Del. R. Super. Ct. RCRP. 61 (d)(2) (i-ii).
5
18 U.S.C. §922(g) prohibits felons from being in possession of firearms. The ACCA sets a mandatory minimum
sentence of 15 years for §922(g) offenders with at least three prior convictions for specified felonies committed on
occasions different from one another. §924(e)(1).
7. In Wooden, the defendant burglarized ten (10) units in a single storage
facility and plead guilty to ten (10) counts of burglary.6 The Wooden defendant
appealed his conviction, claiming that the Armed Career Criminal Act (ACCA)
was not triggered in his case because he had burglarized the ten storage units on
a single occasion rather than “on occasions different from one another” (the
occasion requirement).7 The United States Supreme Court found for the Wooden
defendant and ordered the case remanded to the Sixth Circuit, with the Court
holding that Wooden’s convictions “arose from a closely related set of facts
occurring on the same night, at the same place – making up … ‘a single criminal
episode.’”8 Thus, the requirements for the ACCA to be triggered were not met.
8. The Wooden decision does not create a new applicable rule of
constitutional law. The decision was not based on the constitution which would,
at this point, is what would trigger the right to a post conviction review in
6
Wooden, 142 S.Ct. at 1068.
7
Id. at *9 (citing 18 U.S.C. § 924(e)(1)).
8
Id. at 1074. “Offenses committed close in time, in an uninterrupted course of conduct, will often count as part of
one occasion; not so offenses separated by substantial gaps in time or significant intervening events. Proximity of
location is also important; the further away crimes take place, the less likely they are components of the same
criminal event. And the character and relationship of the offenses may make a difference: The more similar or
intertwined the conduct giving rise to the offenses – the more, for example, they share a common scheme or purpose
– the more apt they are to compose one occasion.” Id. at 1071. This was the approach articulated by the Court in
Wooden in its discussion of the “occasion requirement” of the ACCA.
Defendant’s case. Therefore, Defendant is not entitled to relief under Rule 61
because no new constitutional rule was established in Wooden.9
9. Even assuming Wooden establishes a new rule of constitutional law –
which it does not – Wooden is inapplicable to Defendant’s sentence. In Wooden,
the defendant burglarized ten storage units on a single occasion, meaning in a
single night and in a single uninterrupted course of conduct. The record reflects
that Desmond was charged for a series of robberies which took place at multiple
supermarkets and pharmacies in the Wilmington area between December 1990
and October of 1991. Defendant’s present Motion does not plead with
particularity that he was charged with multiple Theft counts stemming from a
single occasion. Whereas the Wooden defendant committed ten burglaries at one
location and during one night, Defendant committed a series of separate robberies
in different incidents over the course of several months. Defendant’s crime spree
over the course of nearly a full year does not constitute a “single occasion” for
ACCA application purposes.
10. In sum, Defendant’s present Motion is presumptively barred by the
prohibition on successive Rule 61 motions. Since Defendant has not pleaded with
9
This Court also notes that it is insufficient for the Defendant to merely show that a new rule of constitutional law
was established – which Defendant is unable to do in his case. Additionally, Defendant must show that the new rule
of constitutional law was “made retroactive to cases on collateral review by the United States Supreme Court or
Delaware Supreme Court[.]” Del. R. Super. Ct. RCRP. 61 (d)(ii). Defendant fails to make this showing and, thus,
post conviction relief is inappropriate on this basis alone.
particularity that an exception to this procedural bar applies, his current Motion
must be summarily DENIED.
IT IS SO ORDERED.
/s/ Francis J. Jones, Jr.
Francis J. Jones, Jr., Judge.
/jb
Original to Prothonotary
cc: Jamie McCloskey, Esquire
Elise Wolpert, Esquire