Harr v. State
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IN THE SUPREME COURT OF THE STATE OF DELAWARE § § § § § § § § § § § TIMOTHY B. HARR, Defendant BelowAppellant, v. STATE OF DELAWARE, Plaintiff BelowAppellee. No. 368, 2007 Court Below Superior Court of the State of Delaware in and for New Castle County Cr. ID No. 82003606DI Submitted: September 13, 2007 Decided: October 12, 2007 Before BERGER, JACOBS and RIDGELY, Justices. ORDER This 12th day of October 2007, upon consideration of the appellant s opening brief and the appellee s motion to affirm pursuant to Supreme Court Rule 25(a), it appears to the Court that: (1) The defendant-appellant, Timothy B. Harr, filed an appeal from the Superior Court s July 6, 2007 order denying his motion for postconviction relief pursuant to Superior Court Criminal Rule 61. The plaintiff-appellee, the State of Delaware, has moved to affirm the Superior Court s judgment on the ground that it is manifest on the face of the opening brief that the appeal is without merit. We agree and affirm. (2) In January 1983, Harr pleaded guilty to two counts of Rape in the First Degree. He was sentenced to Level V incarceration for life on each count. Immediately following sentencing, Harr was returned to North Carolina, where he was serving a criminal sentence. Harr did not file a direct appeal from the Superior Court s convictions and sentences. (3) In June 2007, approximately 24 years after his conviction became final, Harr filed the instant motion for postconviction relief.1 Under Rule 61(i) (1), Harr had three years after his conviction was final to file a motion for postconviction relief.2 Harr, however, alleges that the time bar should not apply to his claim because of a miscarriage of justice under Rule 61(i) (5).3 Specifically, Harr claims that his counsel provided ineffective assistance by failing to inform him that his sentences on the rape convictions would run consecutive to, and not concurrent with, his North Carolina sentence. (4) In order to prevail on a claim of ineffective assistance of counsel in connection with a guilty plea, a defendant must demonstrate that, but for his counsel s unprofessional errors, he would not have pleaded 1 Harr s conviction became final in February 1983. Harr s conviction became final prior to July 1, 2005, the date when the Rule was changed to reduce the statute of limitations from three years to one year. 3 The Rule provides that the time bar shall not apply to a claim that the court lacked jurisdiction or to a colorable claim that there was a 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. 2 2 guilty, but would have insisted on proceeding to trial.4 The defendant must make concrete allegations of actual prejudice, and substantiate them, or risk summary dismissal.5 (5) As noted in the Superior Court s order, the transcript of Harr s guilty plea is not available, since the court reporter s notes from 1983 are not available and the retention period for such notes is 20 years. Harr s sentencing order states that, on the first count of rape, he is to [b]e imprisoned for life beginning at the expiration of sentence now serving in North Carolina. On the second count of rape, he is to [b]e imprisoned for life beginning at the expiration of sentence imposed [on the first rape count]. (6) Harr s sentencing order clearly provides that his Delaware sentences are consecutive to his North Carolina sentence and that the sentence on the second rape count is consecutive to the sentence on the first rape count. As such, Harr should have been aware that the sentences were consecutive, not concurrent. If Harr believed that there was some irregularity with respect to his sentences, he had the opportunity to file an appeal or a motion challenging his sentences. He did not do so. Under these circumstances, we conclude that Harr has failed to demonstrate either that 4 5 Hill v. Lockhart, 474 U.S. 52, 58 (1985). Younger v. State, 580 A.2d 552, 556 (Del. 1990). 3 his counsel was ineffective or that there has been a miscarriage of justice with respect to his sentences. His claim is, therefore, time-barred.6 (7) It is manifest on the face of Harr s opening brief that his appeal is without merit because the issues presented on appeal are controlled by settled Delaware law and, to the extent that judicial discretion is implicated, there was no abuse of discretion. NOW, THEREFORE, IT IS ORDERED that, pursuant to Supreme Court Rule 25(a), the State of Delaware s motion to affirm is GRANTED. The judgment of the Superior Court is AFFIRMED. BY THE COURT: /s/ Jack B. Jacobs Justice 6 Harr s claim that his sentences should be reviewed because of the ambiguity of Delaware law regarding life sentences was not presented to the Superior Court in the first instance and we, therefore, decline to consider it in this appeal. Supr. Ct. R. 8. 4
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