Opinion
Case No. 1212000184
09-01-2017
STATE OF DELAWARE, v. DANIEL TOLEM, Defendant
Julia Mayer, Esquire Deputy Attorney General 820 N. French Street, 7th Floor Wilmington, DE 19801 Attorney for the State of Delaware Gregory Morris, Esquire Liguori & Morris 46 The Green Dover, DE 19901 Attorney for Defendant
Julia Mayer, Esquire
Deputy Attorney General
820 N. French Street, 7th Floor
Wilmington, DE 19801
Attorney for the State of Delaware Gregory Morris, Esquire
Liguori & Morris
46 The Green
Dover, DE 19901
Attorney for Defendant LETTER OPINION AND ORDER
1. The defendant, Daniel Tolem (hereinafter the "Defendant"), was charged with Theft Under $1,500.00 and several other offenses. The Defendant pled guilty to the Theft charge on July 15, 2013. Since pleading guilty, the Defendant, a non-United States Citizen, has received notification of a deportation hearing on the basis of the criminal conviction. The Defendant filed the instant Motion to Withdraw Guilty Plea, pursuant to Court of Common Pleas Rules of Criminal Procedure 32 and 61. The Defendant argues he was not informed of the potential immigration consequences of pleading guilty. On August 17, 2017, a hearing was convened on the Motion, and the Court reserved decision. This is the Court's decision and Order on the Defendant's Motion to Withdraw Guilty Plea.
The Court accepted supplemental briefing by the Defendant to address the case law referenced by the State during the hearing.
2. Central to the Defendant's Motion is the argument his defense counsel was ineffective, in violation of Strickland. In Padilla v. Kentucky, the United States Supreme Court found it "is quintessentially the duty of counsel to provide her client with available advice about an issue like deportation and the failure to do so 'clearly satisfies the first prong of the Strickland analysis.' "
Padilla v. Kentucky, 559 U.S. 356, 371 (2010).
3. The Defendant alleges his attorney failed to discuss the possibility of deportation as a consequence of pleading guilty. The Court also notes the guilty plea was entered at a time when this Court was transitioning to a new form; the plea was entered pursuant to the old form, which, unlike the newer forms, did not contain any questions pertaining to the Defendant's citizenship status. Furthermore, the colloquy conducted by the Court did not include any questions on the Defendant's citizenship status or discuss the possible deportation consequences of pleading guilty. Therefore, for the purposes of this Motion, the Court will assume without further inquiry that the Defendant did not receive advice pertaining to immigration consequences, in violation of Padilla.
4. However, the State argues the Defendant's Motion is procedurally barred due to a lack of standing. The Defendant is no longer in custody or under the supervision of the State of Delaware relating to the instant offense, nor is he subject to future custody or supervision pertaining to this offense. A motion brought under Rule 61 must be "an application by a person in custody or subject to future custody under a sentence of this Court[.]" Because the Defendant cannot satisfy the custody requirement of Rule 61, the State argues the Defendant lacks standing.
The Defendant brought the instant Motion under Rules 32 and 61. However, Rule 32(d) explicitly states any motion to withdraw a guilty plea filed after imposition of a sentence may only be granted pursuant to a motion filed under Rule 61.
5. Delaware courts have examined this issue of standing under the precise context of Padilla. In Ruiz v. State, the Delaware Supreme Court found the defendant lacked standing because he was no longer subject to supervision pursuant to a sentence of the court. In Baltazar v. State, the Supreme Court again found the defendant did not have standing, even though the Defendant had subsequently been taken into custody relating to a pending deportation hearing.
Ruiz v. State, 23 A.3d 866, at *2 (Del. Jul. 6, 2011) (TABLE). The State cited to Ruiz v. State, 956 A.2d 643 (Del. 2008) (TABLE), which was decided prior to Padilla. However, the same defendant brought a second motion in the latter case, raising Padilla as a ground for relief. The conclusion in both cases was functionally identical.
Baltazar v. State, 108 A.3d 1224, at *3 (Del. Jan. 20, 2015) (TABLE).
6. The Defendant argues Baltazar is not binding because the instant Motion was brought under Rule 32, rather than Rule 35. According to the Defendant, Rule 32 "permits vacating or allowing someone to withdraw their guilty plea at the clear and broad discretion of the Court." This is incorrect. When a defendant attempts to withdraw a guilty plea after the imposition of a sentence, the Court must analyze the Motion under Rule 61. Next, the Defendant suggests Baltazar found the motion was untimely, as opposed to the matter sub judice. Again, the Defendant misreads Rule 61. The time bar refers to the requirement of bringing the motion within one year of the imposition of the sentence; it is a statute of limitations, rather than an element of standing, and is therefore distinct from the requirement of the defendant being in custody or under supervision. Whether Baltazar relied upon the time bar or not is immaterial.
According to the Defendant, the time bar does not apply when there is a miscarriage of justice.
7. The Defendant further argues the "holding in Baltazar indicates that deportation would be considered a collateral consequence which could be grounds to permit relief even after the completion of the sentence." The Defendant cited to Gural v. State, 251 A.2d 344 (Del. 1969) and State v. Lewis, 797 A.2d 1198 (Del. 2002) in support of this proposition. The Defendant is facially incorrect. Baltazar's holding explicitly stated the defendant lacked standing to bring a motion under Rule 61, despite facing deportation. Lewis explicitly noted the collateral consequence of deportation could be grounds for relief under Rule 35, but not Rule 61: "relief after the completion of a sentence cannot be secured under Rule 61, because the language of 61(a) appears to create a standing bar. If the collateral consequences rule for mootness is to have any applicability at all, it must be available under Rule 35 as opposed to Rule 61." As the Defendant pointed out, the instant Motion is not brought pursuant to Rule 35. Therefore, the Defendant cannot rely upon the collateral consequence exception to bypass the standing requirement of Rule 61.
State v. Lewis, 797 A.2d 1198, 1201 (Del. 2002). --------
8. The Court is bound by the standing requirements of Rule 61, as interpreted by the Delaware Supreme Court. Therefore, because the Defendant is no longer in custody of or under supervision by the State of Delaware, and is not subject to future custody or supervision relating to the underlying offense, the Defendant lacks standing to bring a Motion under Rule 61.
9. AND NOW, this 1st day of September, 2017, upon consideration of the Defendant's Motion to Withdraw Guilty Plea, and all arguments on the Motion,
10. IT IS HEREBY ORDERED that the Motion is DENIED.
IT IS SO ORDERED.
/s/
Carl C. Danberg
Judge cc: Tina Smith, Judicial Case Manager