IN THE SUPERIOR COURT OF THE STATE OF DELAWARE
STATE OF DELAWARE,
)
) I.D.: 91009844DI
v. )
)
CHRISTOPHER DESMOND, )
)
Defendant.
ORDER ON DEFENDANT’S MOTION
Submitted: June 30, 2022
Decided: July 11, 2022
Defendant, Christopher Desmond (“Desmond”) or (“Defendant”), has filed with
the Court the following: (1) his June 22, 2022 filing, the title of which is “The
Uniform Post-Conviction Procedure Act (1955) Make Delaware Superior Court
Criminal Rule 61 Proceedings Civil Proceeding…;” (2) his letter dated June 29,
2022, the subject of which is “Application of Concepcion v. United States…”; and
(3) his letter dated June 30, 2022, the subject of which is ‘Application of “Formerly
Incarcerated Reenter Society Transformed Safely Transition Every Person Act ….”
Having considered these filings and letters, 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
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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.
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 Supreme Court of the United States since his 1992 conviction.
3. Most recently, this Court denied Defendant’s sixteenth attempt to
receive relief under Superior Court Criminal Rule 61. In this most recent
application, Defendant argued that the recent United States Supreme Court
decision, Wooden v. United,1 articulated a new rule of constitutional law that
justified relief under Rule 61. Applying Rule 61, this Court wrote:
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 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.
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.
1
142 S.Ct. 1063 (March 7, 2022).
2
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. 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. Desmond takes issue with this Court’s use of existing Rule 61 to
analyze his claim. According to Desmond, the standards of Rule 61 that were
in effect at the time of his conviction should apply. Desmond is incorrect as
Delaware law is clear that, in analyzing Rule 61 motions, the Rule in effect at
the time the motion was filed controls.2 Even assuming that Desmond is
correct, he is not entitled to relief under the pre-2014 Amendment to Rule 61
which allowed a Court to grant relief where, in the Court’s view, there was a
manifest injustice. No manifest injustice has occurred in this case. 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
1990 and October 1991. There is simply no manifest injustice in not applying
Wooden to Defendant’s case.3
2
Redden v. State, 150 A.3d 768 (Del. 2016) and Bradley v. State, 135 A.3d 748, 757 n.24 (Del. 2016).
3The Court notes that, prior to 2014, numerous courts have considered Desmond’s Claim for Relief in this case, and
every single court that applied the pre-2014 version of Rule 61 denied Desmond’s Claim for Relief.
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5. Desmond also maintains that this Court is required to review his
convictions and sentences under the First Step Act,4 a law passed by Congress,
because Delaware received funds under the Act. The review of Desmond’s
sentence and convictions is not controlled by the First Step Act. The First Step
Act is a federal law applying to federal crimes only.5 The review is controlled
by Delaware law and the United States Constitution. This Court joins the
multitude of other Courts and Judges that have reviewed Defendant’s case and
have determined that Defendant’s convictions and sentences were proper.
6. Desmond further maintains that Concepcion v. United States,6 a
recently decided case by the United States Supreme Court, supports his claim
that he is entitled to application of State v. Owens7 and State v. Bridgers.8 In
Concepcion, the Supreme Court held that under the First Step Act, district
courts are permitted to consider intervening changes of law or fact in
exercising their discretion to reduce a sentence pursuant to the Act. This Court
reiterates that Concepcion and the First Step Act are inapplicable to
Defendant’s case because his convictions are pursuant to state law not federal
law. Additionally, this Court has already addressed Defendant’s claim which
relies on Owens and Bridges. The Court reiterates that Owens and Bridges did
4 FIRST STEP ACT OF 2018, PL 115-301, December 21, 2018, 132 Stat 5194.
5 Id. at § 404(a)(“[T]he term ‘covered offense’ means a violation of a Federal criminal statute, the statutory
penalties for which were modified by section 2 or 3 of the Fair Sentencing Act of 2018 (Public Law 111-220;
124 Stat. 2372, that was committed before August 3, 2010.”).
6 2022 WL 2295029, at *12(Jun. 27, 2022).
7 2010 WL 2892701 (Del. Super. Ct. Jul. 16, 2010).
8 988 2.d 939 (Del. Super. Ct. 2007), aff’d, 2009 WL 824536 (Del. Mar. 30, 2009).
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not re-fine or re-interpret the elements of first degree robbery, neither did it
make such reinterpretation retroactively applicable to cases on collateral
review.9
Therefore, Desmond’s Application for Relief is DENIED.
This Court reaffirms its instructions contained in its May 22, 2022 Order
which provided:
This Motion constitutes Defendant’s seventeenth Motion
for postconviction relief. Defendant’s requests are repetitive
and/or frivolous and it is not in the interest of justice to
review the same issues ad infinitum. Continuing concerns
for allocation of scarce judicial resources demand that the
Court exercise its discretion to refuse consideration of
additional motions unless new issues are raised for the
Court’s consideration. Therefore, in the future, the Court
will not take any action on Defendant’s filings unless there
is an initial determination that such filings are not repetitive
or frivolous.
IT IS SO ORDERED.
/s/ Francis J. Jones, Jr.
Francis J. Jones, Jr., Judge
cc: Original to the Prothonotary
Maria Knoll, Deputy Attorney General
Anthony Figliola, Esquire
Mr. Christopher Desmond, Defendant
9 See Desmond v. Phelps, 2012 WL 3518531, at *2 (Del. Aug. 15, 2012).
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