Opinion
I.D. No. 89006317DI.
Submitted: October 16, 2007.
Decided: December 5, 2007.
UPON CONSIDERATION OF DEFENDANT'S FIRST MOTION FOR POSTCONVICTION RELIEF DENIED.
This 5th day of December, 2007, it appears to the Court that:
1. Mario Ruiz ("Ruiz") pleaded guilty to Assault in the Second Degree on December 18, 1989 and served a sentence of five years. Ruiz did not appeal his conviction.
Ruiz notes that he did not seek to withdraw his guilty plea or to file an appeal because he did not know, until now, that he could be deported or that he could seek recourse through a Judicial Recommendation Against Deportation ("JRAD") under 8 U.S.C. § 1251. JRAD has since been repealed.
2. On October 16, 2007, nearly eighteen years later, Ruiz filed this, his first motion for postconviction relief. Ruiz raises three grounds for relief in this motion: (1) Ruiz received ineffective assistance of counsel because defense counsel never sought a Judicial Recommendation Against Deportation ("JRAD") which could affect Ruiz's risk of being deported; (2) the proceedings in which he pleaded guilty were fundamentally unfair under the totality of the circumstances because the Court gave potentially misleading information that his guilty plea "might affect" his right to remain in the United States, without either the Court or counsel giving Ruiz adequate information to make this determination; and (3) Ruiz, a Spanish speaking individual, lacked informed consent in entering his guilty plea because he was not given adequate information about his rights. Because he is aware that the passage of time prejudices the State, Ruiz asks that he be permitted to vacate his earlier guilty plea, accept a new plea to a lesser charge, and enter into a civil release regarding his sentence on the original offense.
3. 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 ("Rule 61"). If the procedural requirements of Rule 61 are not met, in order to protect the integrity of the procedural rules, the Court should not consider the merits of a postconviction claim. In those cases, the Court may summarily dismiss the defendant's claim "[i]f it plainly appears from the motion for postconviction relief and the record of prior proceedings in the case that the movant is not entitled to relief[.]"
Younger v. State, 580 A.2d 552, 554 (Del. 1990). See also Bailey v. State, 588 A.2d 1121, 1127 (Del.Super.Ct. 1991).
State v. Gattis, 1995 WL 790961, at *2 (Del.Super.Ct. Dec. 28, 1995) (citing Younger, 580 A.2d at 554).
Super. Ct. Crim. R. 61(d)(4).
4. 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 any 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."
If the final order of conviction occurred before July 1, 2005, the motion must be filed within three years. If the final order of conviction occurred on or after July 1, 2005, however, the motion must be filed within one year. See Super. Ct. Crim. R. 61(i)(1) (July 1, 2005) (amending Super. Ct. Crim. R. 61(i)(1) (May 1, 1996)).
Super. Ct. Crim. R. 61(i)(5).
Id. R. 61(i)(4).
5. Having considered the claims presented by Ruiz in this motion, the Court concludes that they are all procedurally barred. Rule 61(i)(1) applies because Miller filed this motion more than three years after his final order of conviction. Rule 61(i)(3) also bars his claims because Ruiz chose not to file a direct appeal to the Supreme Court, nor did he raise these claims during his plea colloquy.
6. Notwithstanding these obstacles, Ruiz's claims in the instant motion will be addressed on their substantive merits. A claim of ineffective assistance of counsel by a defendant is not procedurally barred because it "is a constitutional violation that undermines the fundamental legality, reliability, integrity or fairness of a proceeding." Moreover, Ruiz's claims that he lacked informed consent indicate that there may be "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."
State v. Morla, 2007 WL 2566012, at *3 (Del.Super.Ct. Aug. 30, 2007).
Super. Ct. Crim. R. 61(i)(5).
7. Ruiz's first argument appears to be that he did not enter his plea knowingly and voluntarily. In support of this claim, he points out that he is Spanish speaking and was not given adequate information on which to enter his guilty plea.
Ruiz appears to argue these three points as ineffective assistance of counsel arguments. As noted above, the Court will address his ineffective assistance of counsel argument hereinafter.
8. The Delaware Supreme Court has explained the appropriate standard for a judge to accept a guilty plea:
A judge who accepts a guilty plea must be satisfied that the plea is entered knowingly and voluntarily. Sullivan v. State, Del.Supr., 636 A.2d 931, 937, cert denied, 513 U.S. 833, 115 S.Ct. 110, 130 L.Ed.2d 57 (1994); Brown v. State, Del.Supr., 250 A.2d 503, 505 (1969). To ensure a defendant enters a knowing and voluntary plea, a trial judge must be certain the defendant understands the direct consequences of pleading guilty. Brady v. United States, 397 U.S. 742, 755, 90 S.Ct. 1463, 25 L.Ed.2d 747 (1970). "The direct consequences of a plea are covered in Federal Rule 11, after which this [c]ourt's Rule 11 (effective in January 1992) was patterned." State v. Christie, Del.Super., 655 A.2d 836, 839, aff'd, Del.Supr., 655 A.2d 306 (1994). The consequences required to be explored in the colloquy by the trial judge are enumerated in Superior Court Criminal Rule 11(c).
9. Superior Court Rule 11(c) states, in pertinent part:
Before accepting a plea of guilty or nolo contendere to a felony or a class A misdemeanor, or to any other offense for which a sentence of imprisonment will be imposed, the court must address the defendant personally in open court and inform the defendant of, and determine that the defendant understands the following: (1) The nature of the charge to which the plea is offered, the mandatory minimum penalty provided by law, if any, and the maximum possible penalty provided by law, the fact that the court is required to consider any applicable sentencing guidelines but may depart from those guidelines under some circumstances, and, when applicable, that the court may also order the defendant to make restitution to any victim of the offense. . . .
State v. Barkley, 724 A.2d 558, 559 (Del. 1999).
Super. Ct. Crim. R. 11(c).
Thus, a judge must only determine whether a defendant understands the direct consequences of his plea agreement.
Barkley, 724 A.2d at 559.
10. In contrast, a Delaware judge does not need to determine whether a defendant who pleads guilty understands the collateral consequences of his actions. A collateral consequence "is one that is not related to the length or nature of the sentence imposed on the basis of the plea." The Delaware Supreme Court in State v. Barkley discussed the same claim that Ruiz now brings to this Court and agreed with the Third Circuit Court of Appeals' reasoning in rejecting a similar contention:
Id. (citing United States v. Romero-Vilca, 850 F.2d 177, 179 (3d Cir. 1988); Kincade v. United States, 559 F.2d 906, 909 (3d Cir. 1977), cert. denied, 434 U.S. 970 (1977)).
In Romero-Vilca, the defendant moved to invalidate his guilty plea on the basis that the trial court had failed to inform him that he could face deportation because of his guilty plea. . . .The Court of Appeals in rejecting that claim, concluded that while deportation might follow, it was a potential result and thus merely a collateral consequence of the plea.
Id. at 560 (citing Romero-Vilca, 850 F.2d at 179).
11. In this case, the record reflects that Ruiz was informed by the Court of the potential impact that Ruiz's guilty plea could have upon him:
The State: The plea agreement which the defendant will be pleading guilty to is assault second, . . . [a]nd the State will inform the federal authorities of the defendant's status as an illegal alien.
. . .
The Court: In your case there is an additional forfeiture of a right. That might be the right of remaining in the United States.
Ruiz: Yes, sir.
The Court: Do you understand [that] the State intends to notify the federal government of your status as an illegal alien?
Ruiz: Yes.
Plea Colloquy Tr., at 2:9-17.
Id., at 7:20-8:3.
At his colloquy, Ruiz admitted that he was aware of the possibility of deportation and that the federal government would be notified of his illegal alien status. As a result, any argument that he did not understand the consequences of his guilty plea regarding deportation stands in direct contrast to the record and his own admission at the plea colloquy. Accordingly, Ruiz's argument that he lacked adequate information to enter into his plea is unfounded.
12. Nor does the fact that Ruiz spoke Spanish result in a finding that the colloquy was fundamentally unfair. At no time did Ruiz object to the fact that the proceedings were in English, or that the translator was unclear, or that he did not understand the consequences of or the discussions during his plea colloquy. Had Ruiz made such an objection or informed the translator, the Court would have taken appropriate action. Ruiz, in fact, responded to every question asked by the Court, either to the judge or to the court translator, without ever showing a lack of understanding. Accordingly, Ruiz's allegation that he did not fully understand the colloquy or that he entered his plea without informed consent is summarily dismissed.
See Super. Ct. Crim. R. 61(d)(4) (permitting a Court to summarily dismiss a claim "[i]f it plainly appears from the motion for postconviction relief and the record of prior proceedings in the case that the movant is not entitled to relief").
13. Ruiz's primary argument, that he was denied effective assistance of counsel because his counsel failed to inform him that he could seek a JRAD under 8 U.S.C. § 1251(b), warrants some discussion. To evaluate Ruiz's claim, the Court applies the two-part test of Strickland v. Washington. Under Strickland,
446 U.S. 668 (1984)
the defendant must show that counsel's representation fell below an objective standard of reasonableness," and "that there is a reasonable probability that, but for counsel's unprofessional error, the result of the proceedings would have been different." In applying the two-part Strickland test to a defendant's claim, the Court must "indulge a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance."
State v. Desmond, 1995 WL 717628, at *2 (Nov. 16, 1995) (citing Albury v. State, 551 A.2d 53, 58 (Del. 1988) (quoting Strickland, 466 U.S. at 688, 694).
Additionally, the defendant must be able to show that "counsel's errors were so serious as to deprive the defendant of a fair trial, a trial whose result is reliable."
Righter v. State, 704 A.2d 262, 264 (Del. 1997).
14. At the time of Ruiz's sentencing, a JRAD would have permitted the trial court to exercise its discretion within thirty days of Ruiz's sentence to issue an order barring deportation from the United States on account of his conviction. In the past, other federal courts have held that "[a] deprivation of an opportunity to have a sentencing court exercise its discretion in a defendant's favor can constitute ineffective assistance of counsel" where the failure to mention the JRAD remedy was found to be a direct, and not a collateral, consequence of a defendant's sentence. As discussed herein, however, Delaware Courts have found that deportation is a collateral, and not a direct, consequence. The Court further notes that the cases cited by Ruiz, in which the defendant who pleaded guilty would almost certainly be deported, are inapposite to Ruiz, who did not face automatic deportation and has been living in this country for over seventeen years.
Before it was repealed, the JRAD statute, 8 U.S.C. § 1251, read, in pertinent part:
(a) Any alien in the United States . . . shall, upon the order of the Attorney General, be deported who — . . . (4) is convicted of a crime involving moral turpitude committed within five years after entry and either sentenced to confinement or confined therefore in a prison or corrective institution, for a year or more . . .; . . .
(b) . . . The provisions of subsection (a)(4) of this section respecting the deportation of an alien convicted of a crime or crimes shall not apply . . . if the court sentencing such alien for such crime shall make, at the time of first imposing judgment or passing sentence, or within thirty days thereafter, a recommendation to the Attorney General that such alien not be deported, due notice having been given prior to making such recommendation to representatives of the interested State, the Service, and prosecution authorities, who shall be granted an opportunity to make representations in the matter.8 U.S.C. §§ 1251(a)(4), (b), repealed by The Immigration Act of 1990, Pub.L. No. 101-649, 104 Stat. 4978, 5050 (Nov. 29, 1990).
U.S. v. Castro, 26 F.3d 557, 560-61 (5th Cir. 1994) (citing U.S. v. Golden, 854 F.2d 31, 32 (3d Cir. 1988).
See New Mexico v. Paradez, 101 P.3d 799, 806 (N.M. 2004) (permitting a defendant to withdraw a guilty plea where the plea "almost certainly would result in the client's deportation"); Utah v. Rojas-Martinez, 125 P.3d 930 (Utah 2005) (Durham, C.J., dissenting) (finding that the statement that the plea "could lead to deportation" was inaccurate where the defendant "became automatically deportable as a result of his plea").
15. Moreover, even if this Court were to conclude that counsel's failure to mention the JRAD remedy to the Court constitutes ineffective assistance of counsel, which it does not, Ruiz's claim of ineffective assistance of counsel fails on several grounds. First, and most importantly, unlike the defendants in the cases cited by Ruiz, who were in custody or had federal or other state remedies available to them, Ruiz cannot avail himself of the remedies afforded by Rule 61 because he is not "a person in custody or subject to future custody under a sentence of this court [.]" Second, the JRAD remedy was repealed in 1990. Third, this motion was filed almost eighteen years after Ruiz's plea. Ruiz's former counsel admitted that he has no recollection of Ruiz himself or of whether he advised Ruiz about the JRAD possibility. The State is further prejudiced by the passage of time in that any evidence and any witnesses of Ruiz's crime will be difficult to locate, and if found, will likely have forgotten details of the crime. Fourth, Ruiz himself admitted that he committed the crime to which he pleaded guilty. Thus, vacating his guilty plea, and absolving Ruiz of a crime that he admits he committed, would be inappropriate as a remedy.
Super. Ct. Crim. R. 61(a)(1) (emphasis added). Though Ruiz argues that he is "under custody" for purposes of deportation, he is not in custody under a sentence of this court.
In his motion, Ruiz includes a letter from his counsel who represented him at the plea colloquy, in which his counsel explained:
After almost 18 years after the close of [this case], I do not have any recollection of the case or Mr. Ruiz. I do not recall any specific advise [sic] I may have provided Mr. Ruiz regarding deportation from the United States of America as a result of a guilty plea to a felony charge. The guilty plea transcript reflects [that] the Court did not raise that issue with Mr. Ruiz.
Docket 17, Ex. The Court notes, however, that Ruiz, in his own postconviction motion, recognizes that the Court raised the issue that he could face deportation. See Docket 19, at 4.
In fact, at Ruiz's plea colloquy, Ruiz admitted his guilt:
The Court: All right. Are you pleading guilty today because you are in fact guilty of [Assault in the Second Degree]?
Ruiz: Yes, sir.
Plea Colloquy Tr. at 9:7-10.
16. Applying Strickland to the facts of this case, the Court holds that counsel was not ineffective. Under the first prong of Strickland, Ruiz's contention that his attorney's failure to recall — after eighteen years — whether JRAD was mentioned is a "confirm[ation] by silence that no JRAD advice was given [to] petitioner" is simply insufficient to overcome the "strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance." Though the JRAD remedy was not mentioned during Ruiz's plea colloquy, the record reflects that the Court and Ruiz knew of the possibility of deportation based on his illegal alien status. Because Delaware courts have found deportation to be a collateral consequence of a plea agreement, Ruiz cannot establish that counsel's representation fell below an objective standard of reasonableness.
Docket 19, at 4.
State v. Desmond, 1995 WL 717628, at *2 (Nov. 16, 1995) (citing Albury v. State, 551 A.2d 53, 58 (Del. 1988) (quoting Strickland, 466 U.S. at 688, 694).
17. Even if the Court found that Ruiz could overcome the first prong of Strickland, which he cannot, Ruiz has failed to show that counsel's failure to mention JRAD would have resulted in a different outcome. As explained herein, the Court did, in fact, alert Ruiz to the possibility of deportation prior to accepting his guilty plea. Ruiz, nonetheless, stated that he understood that consequence and still wished to plead guilty. Counsel's possible failure to seek a JRAD under these circumstances would not have changed the outcome of the proceeding. Thus, this Court finds that Ruiz has failed to "make and substantiate concrete allegations of actual prejudice" because he has failed to show that his decision to enter a guilty plea would have changed.
Righter, 704 A.2d at 264-65.
18. The Court recognizes that Ruiz has strong ties to the United States, as he has lived here for over seventeen years, and has both a minor child and a job in America. While deportation may cause hardship to the defendant, the fact remains that Ruiz knew of this possibility before he pleaded guilty and knew that the State would alert the federal officials to his illegal alien status. Moreover, Ruiz cannot now claim that he did not commit the crime for which he has already served a prison sentence. Although the federal government waited at least seventeen years from his conviction to begin deportation proceedings, Ruiz cannot say that he was unaware of the possibility that the federal government could deport him at any time.
20. For all of the foregoing reasons, Ruiz's Motion for Postconviction Relief is hereby DENIED.
IT IS SO ORDERED.
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