OPINION AND ORDER

TOLIVER, Judge

This matter comes before the Court on the motion of the Defendant, Nazario I. Morla, seeking postconviction relief pursuant to Delaware Superior Court Criminal Rule 61. Upon reviewing the submissions of the parties, that which follows is the Court's resolution of the issues so presented.

STATEMENT OF FACTS AND NATURE OF THE PROCEEDINGS

On Tuesday, August 16, 2005, the Delaware State Police received information from a past proven reliable confidential source that later that day, a drug transaction was going to take place near Newport, Delaware involving a Hispanic male operating a sport utility vehicle identified as a green Ford Explorer and another Hispanic male operating a sedan described as a silver "BMW". At approximately 12:50 p.m., members of Delaware State Police Special Investigations Unit set up surveillance in Newport near James and Waters Streets. During the course of that surveillance, they observed a series of events culminating in the arrest of the Defendant, Nazario Morla.

More specifically, they observed a BMW with Pennsylvania license tags occupied by an individual that appeared to them to be an Hispanic male. That vehicle was met by a green Ford Explorer occupied by another individual matching that description. The driver of the Explorer then entered the BMW. After a brief conversation, he exited that vehicle and drove away in the Explorer.

The driver of the Explorer, subsequently identified as Co-Defendant Jose Espinosa, traveled down Old Airport Road and entered a junkyard. He emerged a few minutes later followed by a red flatbed tow trunk driven by the Defendant Morla. The two vehicles traveled to the James and Waters Street location where the Defendant Morla handed a black jacket to Co-Defendant Espinosa who in turn gave it to the driver of the BMW. At that point, the police took the three individuals into custody and searched their vehicles. During the search of the BMW, three bags of a powdered substance were found in the black jacket. The substance, determined to be cocaine and weighing 275 grams, was seized.

Representatives of the State Police and the Drug Enforcement Agency interviewed Co-Defendant Espinosa at Troop 6 of the Delaware State Police. During the interview, Co-Defendant Espinosa demonstrated the ability to speak and understand English, and also waived his "Miranda Rights". He stated that when he was arrested, he was in the process of completing the sale of 250 grams of cocaine to the operator of the silver BMW. Co-Defendant Espinosa also stated that it was the Defendant Morla who brought the jacket with the cocaine to the meeting which he delivered to the BMW.

On September 6, 2005, Defendant Morla was indicted for Trafficking in Cocaine (over 100 grams), Possession with Intent to Deliver, Maintaining a Vehicle to Keep Controlled Substances and related offenses. On March 16, 2006, Defendant Morla pled guilty to the lesser included offense of Trafficking Cocaine (50-100 grams). As a result of his guilty plea, Defendant Morla was sentenced to seven years at Level V suspended after four years for Level III probation. The four years at Level V are mandatory. Defendant Morla did not appeal the conviction or the sentence.

Defendant Morla filed the instant petition pro se on March 13, 2007. Up to that point in time, he had been represented by Eugene J. Maurer, Esquire. Mr. Maurer filed his response to the Defendant's Motion for Postconviction Relief on April 27, 2007. Deputy Attorney General Martin B. O'Connor filed a response on behalf of the State on April 30, 2007.

In support of his petition, Defendant Morla makes three arguments.

First, he claims that his plea was not knowingly and voluntarily entered because he is not proficient in English and an interpreter was not provided. Defendant Morla argues that because an interpreter was not present, he did not understand nature of the proceedings during his consultations with Mr. Maurer. He also contends that the plea offer was presented to him without enough time to fully analyze his options, nor was there a thorough explanation of the consequences. Presumably, this argument is premised upon his right to due process of law as guaranteed by the Fourteenth Amendment to the United States Constitution.

Second, Defendant Morla contends that Mr. Maurer's legal assistance was ineffective thereby violating his right to counsel as guaranteed by the Sixth Amendment to the United States Constitution. In support of this contention, Defendant Morla asserts that he has always maintained his innocence and he was told by Mr. Maurer that the State did not have any evidence of his guilt. Defendant Morla further claims that Mr. Maurer gave him incorrect information about his immigration status and the consequences of entering a guilty plea. Nor, he claims, was he allowed to enter his plea before a judge.

Lastly, Defendant Morla argues that he is innocent, and was in the wrong place, at the wrong time. He claims that he is only a mechanic who was driving a tow truck in the process of working on Co-Defendant Espinosa's car and that all the drugs were found with either Co-Defendant Espinosa or the operator of the BMW. In support of this argument he notes that Co-Defendant Espinosa has now recanted testimony that implicated Defendant Morla and admitted that the drugs were his. While he fails once again to cite a specific statute upon which he relies, the Court will assume that he is suggesting that under these circumstances, his conviction constitutes a second violation of his right to due process of law referenced above.

Discussion

To be specific, 61(i)(5) provides that the aforementioned bars may be raised where the defendant establishes a colorable claim that there has been a

"miscarriage of justice". A colorable claim of "miscarriage of justice" occurs when there is a "constitutional violation that undermines the fundamental legality, reliability, integrity or fairness of the proceedings leading to the judgment of conviction." This exception to the procedural bars is very narrow and is only applicable in very limited circumstances. The burden of proving that he has been deprived of a "substantial constitutional right" is placed upon the moving defendant.

In this case, it is readily apparent that the procedural bars set forth in Rule 61(i)(1-4) will not prevecnotnsideration of the merits of the Defendant's claims.

To be specific, the petition was filed within the applicable time limits set forth in Rule 61 and it is not a formerly adjudicated claim. The bars of Rule 61(i) (1 4) would not therefore apply. Moreover, since this is the Defendant's first post-conviction relief application, the same conclusion must be reached relative to Rule 61(i)(2).

The only bar which might be said to be applicable here would be that contained in Rule 61(i)(3) given the fact that the Defendant did not raise his ineffective assistance of counsel claims at trial or during that appeal. However, by their very nature, ineffective assistance of counsel claims are not procedurally barred given the obviously important and stated purpose of Rule 61(i)(5). Put another way, a claim of ineffective assistance of counsel is a constitutional violation that undermines the fundamental

legality, reliability, integrity or fairness of a proceeding for purposes of that subsection of Rule 61(i). The Court, as a consequence, will proceed to examine the merits of the claims raised by Defendant Morla as described above.

In this regard, Defendant Morla's first argument in support of his petition for postconviction relief via Rule 61 is not persuasive.

Mr. Maurer indicated that he met with Defendant Morla on January 8, 2006 at the prison where Defendant Morla was being held. Mr. Maurer admits that at this meeting an interpreter was not present, however, Mr. Maurer submits that he does, "speak some Spanish and the Defendant does 2002 speak some English [and] between the two of us, we were able to communicate effectively." Mr. Maurer also met with Defendant Morla the following day, January 9, 2006 for the final case review. During this meeting, Mr. Maurer and Defendant Morla discussed the State's plea offer. Mr. Maurer suspects, but could not recall, that an interpreter was present that event.

In any event, Defendant Morla ultimately decided to accept the state's plea deal and plead guilty on March 16, 2006. The record reflect that an interpreter was present to assist in discussing the case as well as the plea offered by the State. In addition, the Truth-in-Sentencing "TIS" form was completed in both English and Spanish.

Simply put, the Court must conclude that Defendant Morla's first argument is without merit. The record clearly supports the proposition that Defendant Morla did understand English and that an interpreter remedied whatever deficiency that may have existed regardless of what it might have been. Defendant Morla does not state what he was confused about or why he did not so inform the Court during the course of the plea colloquy. The facts will not support any other conclusion.

Similarly situated is Defendant Morla's claim that he is innocent of the charges to which he pled guilty. As noted above, the Delaware State Police received information that an illegal drug transaction about to take place along with the description of the participants, their vehicles and the location of the event. The police set surveillance based upon that information. When the participants arrived, the police specifically observed Defendant Morla hand the jacket containing the cocaine to Co-Defendant Co-Defendant Espinosa. Furthermore, despite Defendant Morla's assertion to the contrary, Co-Defendant Co-Defendant Espinosa never recanted his testimony prior to the entry of the plea by Defendant Morla. His claim of innocence is clearly not supported by the record and therefore can not provide a basis, constitutional or otherwise, for relief pursuant to Rule 61.

Finally, in order to establish a Sixth Amendment ineffective assistance of counsel claim, a defendant must comply with a two prong test which is set forth in

Strickland v Washington. Strickland requires a defendant to first show that counsel's representation fell below an objective standard of reasonableness. Assuming that the

first prong is satisfied, the defendant must show that counsel's actions were so prejudicial that there is a reasonable probability that, but for counsel's unprofessional errors, the defendant would not have pled guilty and would have insisted on going to trial.

The showing necessary to meet the second prong of the Strickland test is not as exacting. To be precise, the U. S. Supreme Court has stated:

We believe that a defendant need not show that counsel's deficient conduct more likely than not altered the outcome of the case . . . The result of a proceeding can be rendered unreliable and hence the proceeding itself unfair, even if the errors of the counsel cannot be shown by a preponderance of the evidence to have determined the outcome.

The second prong of the Strickland test has, therefore, a lower standard of proof than the first.

The movant must demonstrate that his counsel's representation fell below an objective standard of reasonableness via a preponderance of the evidence. Additionally, there is a strong presumption that the representation was professionally reasonable that must be overcome by the movant. Moreover, if either prong of Strickland is not met, the Defendant's claim fails.

It is also well established that the determination of a postconviction claim should not involve the "distorting effects of hindsight when viewing that representation,". A reviewing court should "reconstruct the circumstances of counsel's challenged conduct," and "evaluate the conduct from counsel's perspective at the time." Mere allegations of ineffectiveness will not suffice. Instead, a defendant must make concrete allegations of ineffectiveness and substantiate those allegations by a showing of actual prejudice or risk summary dismissal.

It is readily apparent that Defendant Morla's claim of ineffective assistance of counsel is without support in the record for several reasons.

First, Defendant Morla can not claim that his alleged poor ability to speak English coupled with Mr. Maurer lack of fluency in Spanish constitutes a violation of his Sixth Amendment right to counsel because he pled guilty and completed the plea colloquy in Spanish. Second, contrary to the his assertions, Mr. Maurer informed Defendant Morla that he would be deported, that the State's evidence against him was "overwhelming and that the plea afforded him the opportunity to cut his jail time at least in half". Third, he had over two months to consider the plea deal offered by the State.

Defendant Morla's claim of ineffective assistance of counsel is also defective because nowhere in his petition does he set forth allegations upon which the Court could find that he has satisfied either prong of the Strickland standard. He does not argue that Mr. Maurer's representation fell below an objective standard of reasonableness or that but for Mr. Maurer's poor representation, he would not have pled guilty and would have insisted on going to trial. Given these deficiencies, this claim is not entitled to any further consideration.

CONCLUSION

IT IS SO ORDERED.