Thomas v. State

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IN THE SUPREME COURT OF THE STATE OF DELAWARE MARLON THOMAS, Defendant BelowAppellant, v. STATE OF DELAWARE, Plaintiff BelowAppellee. § § § § § § § § § § § No. 384, 2004 Court Below---Superior Court of the State of Delaware, in and for Sussex County Cr. ID No. 9505002948 Submitted: February 18, 2005 Decided: March 22, 2005 Before HOLLAND, BERGER and JACOBS, Justices ORDER This 22nd day of March 2005, upon consideration of the briefs on appeal and the record below, it appears to the Court that: (1) The defendant-appellant, Marlon Thomas, filed an appeal from the Superior Court s August 9, 2004 order denying his motion for postconviction relief pursuant to Superior Court Criminal Rule 61. We find no merit to the appeal. Accordingly, we AFFIRM. (2) In August 1995, Thomas was found guilty by a Superior Court jury of Assault in the First Degree, two counts of Unlawful Sexual Intercourse in the Second Degree, Kidnapping in the First Degree, two counts of Possession of a Deadly Weapon During the Commission of a Felony, and Unauthorized Use of a Motor Vehicle. In addition to his direct appeal, Thomas filed two previous motions for postconviction relief. (3) In this appeal, Thomas claims that: a) because he showed that evidence of prior bad acts was improperly admitted at his trial,1 the untimeliness of his postconviction motion2 should have been excused based on a colorable claim that there was miscarriage of justice because of a constitutional violation that undermined the fundamental legality, reliability, integrity or fairness of the proceedings leading to the judgment of conviction. 3 (4) Thomas argument regarding prior bad acts evidence is not a claim of constitutional dimension. As such, there was no basis for the Superior Court to consider whether his untimely postconviction motion should be excused pursuant to Rule 61(i) (5). NOW, THEREFORE, IT IS ORDERED that the judgment of the Superior Court is AFFIRMED. BY THE COURT: /s/ Carolyn Berger Justice 1 Del. Evid. R. 404(b). Super. Ct. Crim. R. 61(i) (1). 3 Super. Ct. Crim. R. 61(i) (5). 2 -2-

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