PARKER, Commissioner

This 2nd day of June, 2010, upon consideration of Defendant's Motion for Postconviction Relief, it appears to the Court that:

1. Defendant Patrick Croll pled guilty on June 26, 2008 to Unlawful Sexual Contact Second Degree, Aggravated Menacing, Possession of a Deadly Weapon During the Commission of a Felony, Assault Second Degree and Endangering the Welfare of a Child.

2. Although Defendant pled guilty to Assault Second Degree, this charge was not included in the Truth-In Sentencing Guilty Plea Form signed by Patrick Croll on June 26, 2008, nor was he informed of the maximum possible penalty he could be facing with respect to that charge at the time of the entrance of his plea. Instead, Defendant was informed, both in the Truth-In-Sentencing Guilty Plea form and at the time of the entrance of his plea, that he was facing a total consecutive maximum penalty of 33 years, rather than a total consecutive maximum penalty of 41 years had the Assault Second Degree charge been included.

3. To remedy this problem, the State, with the permission of the Court entered a nolle prosequi on the charge of Assault Second Degree. Defendant was sentenced on the remaining four charges to which he pled guilty.

4. On February 6, 2009, Defendant was sentenced to a total of 33 years at Level V, suspended after 19 years (two years of which is minimum-mandatory time), for varying levels of probation.

5. Defendant Croll filed a Motion to Withdraw Guilty Plea, predominantly based on the issue that he was never advised of the penalties associated with the Assault Second Degree charge. Since the Defendant was properly advised of the maximum penalty he faced on the remaining four charges, and the omitted charge was dismissed so that Defendant no longer faced any penalties on that charge, the Court denied Defendant's motion to withdraw his guilty plea. The Court found that the Defendant knowingly, intelligently and voluntarily pled guilty to the remaining four charges.

6. Defendant Croll's direct appeal to the Delaware Supreme Court, filed more than 30 days after the Superior Court's February 6, 2009 Sentencing Order, was dismissed as untimely.

7. As to Criminal Case No. 0803007023, Defendant was charged with several sex related offenses involving his step-daughter who was about nine years old at the time. As to Criminal Case No. 0801001836, Defendant was charged with thirteen offenses stemming from a physical altercation with his girlfriend in which Defendant physically hit the victim, hog-tied her with duct tape, cut her wrists while taking the duct tape off with a knife, and lit the bathroom doorway on fire with lighter fluid and matches while the victim was inside the bathroom with Defendant's two year old son present. There was a third case, Criminal Case No. 0802011740 involving a charge of Noncompliance with Conditions of Bond that also was part of the plea bargain, and as a result of the plea, this case was dismissed.

8. At the time of sentencing, it was noted that Defendant was making comments from the prison that: [He] was going to kill [the victim]. I'm going to kill my son, and I'm going to punch her father in his pacemaker until he dies." The Court referenced DOC records in which Defendant threatened that when he got home he would beat the victim until she died, and other records in which he threatened to mutilate the victim and kill her. Defendant's stated intention to kill the victim was among the aggravating circumstances taken into consideration at the time of sentencing.

9. On November 2, 2009, Defendant filed this motion for postconviction relief. Defendant raises three grounds as the basis for the subject motion. Defendant raises the following: (1) Mistaken Waiver of Constitutional Rights at time of entrance of plea; (2) Improper Plea Colloquy; and (3) Ineffective Assistance of Counsel at plea stage.

10. Prior to addressing the substantive merits of any claim for postconviction relief, the Court must first determine whether the defendant has met the procedural requirements of Superior Court Criminal Rule 61. If a procedural bar exists, then the claim is barred, and the Court should not consider the merits of the postconviction claim.

11. Rule 61 (i) imposes four procedural imperatives: (1) the motion must be filed within one year of a final order of conviction; (2) any basis for relief must have been asserted previously in a prior postconviction proceeding; (3) any basis for relief must have been asserted at trial or on direct appeal as required by the court rules unless the movant shows prejudice to his rights or cause for relief; and (4) any basis for relief must not have been formally adjudicated in any proceeding. The bars to relief under (1), (2), and (3), however, do 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. Moreover, the procedural bars of (2) and (4) may be overcome if "reconsideration of the claim is warranted in the interest of justice."

12. Rule 61(i)(4) precludes this Court's consideration of Defendant's first two claims presented herein-mistaken waiver of constitutional rights and improper plea colloquy, since they have already been previously adjudicated. Defendant raised these issues in his Motion to Withdraw Guilty Plea, which was addressed, and denied by the Court on February 6, 2009. The Court already determined that Defendant's plea to the remaining four charges was a knowing, intelligent and voluntary choice.

13. To the extent that Defendant has restated or refined his claims, the Superior Court is not required to re-examine any claim that has received "substantive resolution" at an earlier time simply because the claim is now refined or restated.

14. Moreover, Rules 61(i) (2) and (3) would prevent this Court from considering any additional arguments or claims not previously raised. Defendant was required to, and either did, or should have, raised any issue regarding his plea (with the exception of his ineffective assistance of counsel claim) in a prior proceeding to be procedurally preserved.

15. Even if Defendant's first two claims were not procedurally barred, they are without merit.

16. Defendant signed a Truth-In Sentencing Guilty Plea Form prior to entering his guilty plea in which he stated that he had been notified of the minimum mandatory sentence (33 years), that he had not been promised what his sentence will be, that he had not been threatened or forced to enter the plea, that he was satisfied with his lawyer's representation, that his lawyer fully advised him of his rights, and that he freely and voluntarily decided to plead guilty.

17. Moreover, by signing the Truth-In Sentencing Guilty Plea Form, Defendant further acknowledged that by pleading guilty he would not have a trial and therefore waived his constitutional rights to confront witnesses, present evidence, present a defense, testify or not testify, and appeal any decisions.

18. Before accepting Defendant's plea, the Court engaged Defendant Croll in a plea colloquy to ascertain that his plea was entered knowingly, intelligently, and voluntarily. Defendant's counsel represented that he had many discussions with Defendant Croll about the plea. Defense counsel further represented that he had discussed with Defendant the procedures of the trial, Defendant's trial rights, and the nature of the charges.

19. The Court confirmed Defendant's understanding of the plea and the Defendant's satisfaction with defense counsel's representation. The Court confirmed that Defendant understood he was waiving his rights that existed prior to the entry of his guilty plea.Defendant confirmed that he understood that by accepting the plea agreement, there was no guarantee as to what his sentence would be. During the plea colloquy, Defendant admitted to the offenses to which he pled guilty.

20. Specifically, the plea colloquy, in part, included:

The Court: Do you understand the nature of each of those offenses?

The Defendant: Yes, Your Honor. My lawyer has told me the full spectrum of the charges, your Honor

The Court: Do you understand the rights that you are waiving by pleading guilty?

The Defendant: Yes, your Honor.

The Court: [You] do understand, Mr. Croll, that the Judge who ultimately sentences you is not bound by the recommendation of your attorney or the State and could put you in jail for 33 years?

The Defendant: Yes, your Honor.

The Court: Did you commit these offenses?

The Defendant: Yes, your Honor. And sorry to do them, but I let my anger get ahold of me.

The Court: Are you satisfied with [counsel's] representation of you?

The Defendant: Yes

The Court: Are you certain that this is how you wish to resolve the charges against you?

The Defendant: Yes, your Honor.

21. A defendant is bound by his answers on the guilty plea form and by his testimony at the plea colloquy in the absence of clear and convincing evidence to the contrary. The record before the Court, including Defendant Croll's own statements, undermines completely his claims in his post conviction motion that he did not realize he was waiving his constitutional rights, that the plea colloquy was improper, or that he was forced to accept the plea as a result of ineffective counsel.

22. The Truth-in-Sentencing Form and plea colloquy reveal that Defendant knowingly, voluntarily and intelligently entered a guilty plea to the four charges on which he was sentenced. That he understood he was waiving his constitutional rights, including the right to have a trial, to confront witnesses, to present evidence, to present a defense, to testify or not to testify. That he understood the penalty for those charges, and that he acknowledged his guilt. Therefore, Defendant has not met his burden of showing that he should not be bound by his prior representations under oath. The record reveals no basis to permit the withdrawal of Defendant's guilty plea.

23. Consequently, even if Defendant's first two claims-1) mistaken waiver of constitutional rights and 2) improper plea colloquy, are not procedurally barred, the record reflects that they are without merit. Defendant understood the constitutional rights he was waiving. As to the second claim, the only part of the plea colloquy that was defective, the omission of the penalties associated with the Assault Second Degree charge was remedied by dismissing that charge against Defendant. The plea colloquy was proper in all respects as to the remaining four charges.

24. Turning to Defendant's third claim, ineffective assistance of counsel, this claim is not procedurally barred like the first two claims, because a Rule 61 motion is the appropriate vehicle for such a claim, even where it has not been previously raised.

25. To prevail on an ineffective assistance of counsel claim, the defendant must show that his counsel's efforts "fell below an objective standard of reasonableness" and that, but for his counsel's alleged errors, there was a reasonable probability that the outcome would have been different. Mere allegations of ineffectiveness will not suffice; instead, a defendant must make and substantiate concrete allegations of actual prejudice. There is a strong presumption that counsel's conduct fell within a wide range of reasonable professional assistance.

26. Here, Defendant's ineffective assistance claims are undermined by the record and fail to satisfy Strickland. Defendant fails to state a legitimate ground for relief against his counsel. The record in this case reflects that Defendant Croll understood the nature of the plea and its consequences, was satisfied with the representation provided by counsel, and knowingly, intelligently and voluntarily entered the plea. Indeed, Defendant during the plea colloquy and in his signed Truth-In Sentencing Guilty Plea Form expressly represented that nobody, not his attorney, the State, nor anyone else, threatened or forced him to enter his guilty plea. He further represented that his plea was entered into freely, knowingly and voluntarily.

27. Defendant contends that defense counsel failed to advise him of certain rights he would be waiving as the result of entering a guilty plea. Defendant's contention in this regard is directly contrary to the record in this case. The record reflects that defense counsel fully advised Defendant of the plea, the consequences he was facing as a result of the plea, and the rights he was giving up by taking the plea. The record reflects that defense counsel did not stand silently by throughout the plea colloquy nor did he stand silently by during Defendant's sentencing. Defense counsel's representations at the plea colloquy, Defendant's own representations at the plea colloquy, and the Truth-In Sentencing Guilty Plea Form signed by Defendant, belie Defendant's present contention that he was not fully advised of the rights he would be waiving as the result of his guilty plea or that his counsel was silent throughout the plea proceeding. Defense counsel's conduct does not appear to be deficient in any regard.

28. Defendant contends that his counsel was somehow ineffective because defense counsel, rather than the defendant himself, checked off the appropriate responses on the Truth-In Sentencing Guilty Plea Form. Defense counsel, in his Affidavit in Response to Defendant's Rule 61 Motion, represents that he followed his normal practice in reviewing the Truth-In Sentencing Guilty Plea Form with Defendant Croll line by line, conveying any information required and checking the appropriate boxes on the form based on Defendant Croll's answers. Defense counsel represented that he had Defendant Croll review the form and then sign it only after confirming that it was accurate. There is, in fact, no dispute that Defendant Croll signed the Truth-In Sentencing Guilty Plea Form. Defendant Croll failed to establish that defense counsel's conduct was deficient in this regard nor that he suffered any prejudice as a result thereof.

29. Defendant Croll received a significant benefit by pleading guilty and his guilty plea represented a rational choice given the charges and possible sentences he was facing. Indeed, Defendant Croll was faced with a total of seventeen charges in the three cases that were the subject of the plea and he faced significantly more jail time if convicted of all the charges.

30. Finally, Defendant Croll contends that had he been properly informed of his rights, he would have been better informed and would have been aware of alternative options such as persisting in finishing trial or entering a nolo contendere plea. The plea colloquy and the Truth-In Sentencing Guilty Plea Form reveal that Defendant Croll was properly informed of his rights and because it appears that a plea of nolo contendere was never available to Defendant Croll, it was never an alternative option for him to consider. There is, of course, no obligation to advise a defendant of the availability of no-contest pleas when no such plea was ever offered or available to the defendant.

31. In this case, Defendant has failed to overcome any of the procedural bars by showing a "colorable claim that there was a miscarriage of justice" or that "reconsideration of the claim is warranted in the interest of justice." The "miscarriage of justice" exception is a "narrow one and has been applied only in limited circumstances. The defendant bears the burden of proving that he has been deprived of a "substantial constitutional right." The Defendant has failed to provide any basis, and the record is devoid of, any evidence of manifest injustice. The Court does not find that the "interests of justice" require it to consider the otherwise procedurally barred claims for relief.

For all of the foregoing reasons, Defendant's Motion for Postconviction Relief should be denied.

IT IS SO RECOMMENDED.