State v. Desmond ( 2020 )

IN THE SUPERIOR COURT OF THE STATE OF DELAWARE
STATE OF DELAWARE, )
)
Plaintiff, )
) LD.: 91009844DI
V. )
)
CHRISTOPHER R. DESMOND, )
)
Defendant.
ORDER ON DEFENDANT’S FIFTEENTH MOTION FOR
un POSTCONVICTION RELIEF
Now this2” sty of December, 2020 upon consideration of Defendant
Christopher Desmond’s (“Defendant”) Motion for Postconviction Relief, the
sentence imposed upon Defendant, and the record in this case, it appears to the Court
that:
1. In November of 1992, following a jury trial, Defendant was convicted 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. Most pertinently for this motion,
Defendant’s convictions included ten counts of Robbery in the First
Degree and three counts of Theft. In January of 1993, Defendant was
sentenced to 78 years of Level V incarceration. '
1 See Desmond v. State, 99 A.3d 226, at *1 (Del. Aug. 1, 2014).
2. Since his 1992 conviction, Defendant has filed a large volume of
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. These filings have sought to reduce Defendant’s
sentence and overturn his conviction. Defendant’s direct appeal of his
sentence and all subsequent collateral appeals, motions, and petitions have
been unsuccessful at every level. This Court has previously noted that
Defendant has a “pattern of reasserting past claims by couching the claims
in slightly different language in an attempt to preserve the appearance that
the claim has not been previously adjudicated and is not procedurally
barred by Rule 61.”
3. Defendant has now submitted a self-styled “Motion to Dismiss
Indictments” (“Motion”) pursuant to Rule 61 of the Delaware Rules of
Criminal Procedure (“Rule 61”.) This Motion represents Defendant’s
fifteenth (15") attempt to receive relief under Rule 61.° In his Motion,
Defendant argues that a previously rejected substantive argument
regarding his convictions for Robbery in the First Degree and Theft must
2 State v. Desmond, 2011 WL 91984, at *3 (Del. Supr. Jan. 5, 2011) (citing State v.
Desmond, 2004 WL 838854 (Del. Supr. Apr. 7, 2004)).
3 See State v. Desmond (Del. Supr. July 10, 2018) (summarily dismissing Defendant's
eleventh Motion for Post-conviction Relief.)
be dismissed because he “could not be convicted of multiple thefts based
upon a single theft in that ‘theft’ is an essential element of Robbery First
Degree.”
4. Before addressing the substance of Defendant’s claims in the Motion, the
Court must determine whether any of Defendant’s claims are 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 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 has
been established which would render Defendant’s sentence invalid.°
5. As aforementioned, this is Defendant’s fifteenth Rule 61 motion.
Defendant’s current Motion must therefore demonstrate that one of the two
4 Def. Mot. At 3.
5 Del. R. Super. Ct. RCRP. 61(d)(2)(i-ii).
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 (much less new evidence creating
a strong inference that he is actually innocent of the crimes for which he
was convicted).
6. While Defendant’s motion is not a model of clarity, so far as the Court can
tell, Defendant appears to claim that the second exception to summary
dismissal applies. Defendant asserts that the Supreme Court of Delaware’s
2019 decision in State v. Parker indicates that he cannot be sentenced for
multiple counts of Theft based on a single instance of Theft based on the
double jeopardy rule.®
7. In Parker, the defendant stole a Kawaskaki motorcycle and multiple ATVs
and dirt bikes from the premises of a shipping company called Port-to-Port
in New Castle County, Delaware.’ The defendant in Parker was later
arrested and convicted of two separate offenses in connection with the
‘ncident: Theft of a Motor Vehicle for stealing the Kawakaski motorcycle,
and Felony Theft for stealing the ATVs and dirt bikes during the incident.
The Parker defendant appealed his conviction, claiming that his sentences
for both Theft and Felony Theft based on a single incident violated the
8 See Def.’s Mot. At 3.
7 Parker v. State, 201 A.3d 1181 (Del. Jan. 14, 2019).
double jeopardy principle. The Supreme Court of Delaware found for the
Parker defendant, and ordered the case remanded to the Superior Court for
resentencing, with Chief Justice Strine holding that charging the defendant
with multiple theft counts based on a single incident was “multiplicitous”
and therefore impermissible as a double jeopardy violation.® In the words
of the Chief Justice, multiple counts stemming from a single incident
violated the prohibition against double jeopardy because “it was all one
heist.’””?
8. Parker is inapplicable to Defendant’s sentence. In Parker, the defendant
committed “one heist” which took place at “the same time, at the same
location [the parking lot of Port-to-Port shipping company] and with the
same criminal intent.”!° The record reflects that Desmond was charged for
a series of separate robberies which took place at multiple supermarkets
and pharmacies in the Wilmington area between December of 1990 and
October of 1991.!! The record also reflects that Defendant’s crime spree
affected multiple victims, while the Parker defendant’s theft charges only
affected a single victim: the Port-to-Port shipping company.!? Defendant’s
8 Id. at 1192.
9 Id. at 1190.
10 fd.
11 See State v. Desmond, 1992 WL 390600 (Del. Supr. Nov. 5, 1992) (“These charges
arose out of a series of two supermarket and one pharmacy robberies committed in
4991... and two additional supermarket robberies in 1990 and 1991.”)
12 See Desmond v. State, 654 A.2d 821 (Del. 1994)(“ Between December 15, 1990 and
October 8, 1991, five robberies took place at various supermarkets and pharmacies in
instant Motion does not plead with particularly that he was charged with
multiple Theft counts stemming from a single incident or perpetrated upon
a single victim. Whereas the Parker defendant stole multiple vehicles from
one victim in a “single heist,” 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 heist” for double jeopardy purposes.
9. Defendant has made this argument in previous Rule 61 motions, and it has
been rejected.'? Defendant claims that the procedural bars of Rule 61 do
not apply to this case because the original decisions rejecting this argument
were wrongly decided. Defendant claims that “Superior Court Criminal
Rule 57(d) allows this Court to adopt Superior Court Civil Rules of
Procedures in criminal cases [sic]” and that “Superior Court Civil Rule
59(e) and Rule 60(b) allows for the reopening of the original proceedings
... when the decision is wrong.”
10. Defendant’s contention with respect to Criminal Rule 57 is incorrect. The
text of Del R. Crim. P. 57(d) reads: “In all cases not provided for by rule
or administrative order, the court shall regulate its practice in accordance
different parts of New Castle County. Witnesses testified that, in each of the robberies,
a man, armed with a gun, entered the stores and demanded money. Desmond was
eventually arrested as the perpetrator of the robberies.”)
13 See State v. Desmond, 1995 WL 717628, at *3 (Del. Supr. 1995)(“Desmond argues
that it was a violation of the double jeopardy clause to allow certain robbery counts to go
to the jury based upon a single theft.”)
with the applicable Superior Court civil rule or in any lawful manner not
inconsistent with the Rules of the Supreme Court.” In fact, the present
situation is provided for by the Rules. Rule 61 contemplates exactly the
situation that Defendant wishes to avoid. Rule 61 prohibits successive (that
is, more than one) Rule 61 motions unless an exception specified in the
text of the Rules applies. Defendant’s motion has not demonstrated that an
exception to Rule 61’s bar on successive motions applies, and he cannot
avoid this bar by attempting to apply a different procedural standard taken
from the Delaware Rules of Civil Procedure. The Superior Court is not
obligated to reconsider a previously rejected argument simply because
Defendant has refined or restated his argument.'* Moreover, and as
articulated above, Parker v. State has no applicability to the Defendant and
does not provide and avenue for relief under the exceptions outlined in
Rule 61.
11. In sum, Defendant’s present Motion is presumptively barred by the
prohibition on successive Rule 61 Motions. Since Defendant has not
pleaded with particularity that an exception to this procedural bar applies,
his current Motion must be summarily DENIED.
14 See Desmond v. State, 2014 WL 3809683 at *2 (“Neither the Superior Court nor [the
Supreme Court] is obligated to reconsider a previously rejected claim simply because
the issue has been refined or restated.”)
4). -
f fr — ~\Z~*
Francis J. Jones, Judge /