State v. Evans, Jr. ( 2022 )

SUPERIOR COURT
OF THE
STATE OF DELAWARE
CRAIG A. KARSNITZ 1 The Circle, Suite 2
RESIDENT JUDGE Georgetown, DE 19947
Telephone (302) 856-5263
November 18, 2022
Augustus H. Evans, Jr.
SBI# 00191247
James T. Vaughn Correctional Center
1181 Paddock Road
Smyrna, DE 19977
Re: State of Delaware v. Augustus H. Evans, Jr., Def. ID# 0609011528A
Dear Mr. Evans:
On October 26, 2021, I denied (1) your August 13, 2021 “Amended
Memorandum Supporting Motion to Rehear” Judge Robinson’s April 19, 2021
denial of your tenth Rule 61 Motion for Postconviction Relief, (2) your request for
the appointment of postconviction counsel, and (3) your request for an evidentiary
hearing.
On November 14, 2022, we received three additional filings from you:
(1) Rule 22 Motion to Stay Proceedings Until Rule 35(a): Correction of Illegal
Sentence Motion Before Delaware Superior Court is Resolved, to be filed
in the Supreme Court of the United States;
(2) Rule 35(a) Motion for Correction of Illegal Sentence, to be filed in the
Superior Court for New Castle County; and,
(3) Rule 35(a) Motion for Correction of Illegal Sentence, to be filed in this
Court.
All three Motions were received by Judge Wallace in the Superior Court for New
Castle County, who recused himself1and directed that the Motions be returned to the
Prothonotary for reassignment. The Motions have been reassigned to me.
Your first Motion is captioned as “Rule 22 Motion to Stay Proceedings Until
Rule 35(a): Correction of Illegal Sentence Motion Before Delaware Superior Court
is Resolved,” to be filed with the United States Supreme Court. Delaware Superior
Court Criminal Rule 22 addresses the time of a motion to transfer a case to another
county for plea and sentence2 or for trial,3 and therefore does not appear to be
apposite in this case. Nor does United States Supreme Court Rule 22 (Application
to Individual Justices) appear to be apposite. In any event, your Motion appears to
ask the United States Supreme Court to stay the proceedings in your case until the
Delaware Superior Court rules on your Rule 35(a) Motions. Perhaps you meant to
file with the Delaware Supreme Court.4 In any event, this Court cannot accept filings
for either the United States Supreme Court or the Delaware Supreme Court, which
you must file directly with those Courts.
Your second Motion is specifically addressed to Judge Wallace, claiming that
he has unique expertise on, and is best versed on, the issues raised by your case. As
stated above, Judge Wallace has recused himself, and I have been assigned to this
case. The substance of this second Motion is identical to the substance of your third
Motion, so I will rule on them simultaneously.
Your third Motion is made under Rule 35(a) for correction of an illegal
sentence. Rule 35(a) permits me to correct an illegal sentence “at any time.”5 The
“narrow function of Rule 35 is to permit correction of an illegal sentence, not to re-
examine errors occurring at the trial or other proceedings prior to the imposition of
1
Under Del. Judges’ Code of Judicial Conduct Canon 2, Rule 2.11(A)(4)(a) (2022).
2
Super. Ct. Crim. R. 20.
3
Super. Ct. Crim. R. 21.
4
In Evans v. State, 2015 WL 7758307, at *2 (Del. Dec. 1, 2015), the Delaware Supreme Court
stated that, based on your history of repetitive and frivolous filings, you cannot challenge your
criminal convictions in that Court unless you submit 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 granted by the Delaware Supreme Court.
5
Super. Ct. Crim. R. 35(a).
2
sentence.”6 “A proceeding under Rule 35 presupposes a valid conviction.”7 Relief
under Rule 35(a) is available “when the sentence imposed exceeds the statutorily-
authorized limits, [or] violates the Double Jeopardy Clause.”8 A sentence may be
illegal if it violates the defendant’s constitutional or statutory rights, or if the court
lacked jurisdiction.9 A sentence is also illegal if it “is ambiguous with respect to the
time and manner in which it is to be served, is internally contradictory, omits a term
required to be imposed by statute, is uncertain as to the substance of the sentence, or
is a sentence which the judgment of conviction did not authorize.”10
Your Motion does not address any of these grounds for an illegal sentence.
Rather, and given the fact that your conviction and sentence occurred many years
ago, you appear to have latched on to the words “at any time” to rehash all the errors
you have repeatedly alleged occurred at the trial prior to the imposition of your
sentence, or in your numerous Rule 61 Motions. These include failure to give a jury
instruction on a lesser included offense (Menacing), actual innocence in fact, and the
retroactive application of a post-sentencing change to Rule 61 which eliminated the
“miscarriage of justice” exception to the bars to relief11 (which you claim is an ex
post facto violation of your due process rights). These claims have all been
adjudicated numerous times previously and denied by this Court. Another Rule 61
Motion disguised as a Rule 35(a) Motion simply does not pass muster.
Accordingly, both of your Motions for Correction of Illegal Sentence under
Rule 35(a) are DENIED.
6
Hill v. United States, 368 U.S. 424, 430 (1962).
7
Whitfield v. United States, 401 F.2d 480, 483 (9th Cir. 1968). Accord Evans v. State, 892 P.2d
796, 797 (Wyo. Supr., 1995); State v. Meier, 440 N.W.2d 700, 703 (N.D.Supr.,1989).
8
United States v. Pavlico, 961 F.2d 440, 443 (4th Cir. 1992).
9
Kelly v. State, 911 A.2d 803 (Del. 2006).
10
United States v. Dougherty, 106 F.3d 1514, 1515 (10th Cir. 1997); see generally Brittingham v.
State, 705 A.2d 577 (Del. 1998).
11
Super. Ct. Crim. R. 61(i).
3
IT IS SO ORDERED.
Very truly yours,
/s/ Craig A. Karsnitz
cc: Prothonotary
4