Opinion
ID No. 9905005688.
Date Submitted: January 23, 2001.
Date Decided: February 20, 2001.
Bersalindo Velasquez, Delaware Correctional Center.
Pending before the Court is the motion of defendant Bersalindo Velasquez ("defendant") for postconviction relief pursuant to Superior Court Criminal Rule 61 ("Rule 61"). This constitutes my decision on the motion.
On May 10, 1999, defendant was arrested on charges of rape in the first degree; kidnapping in the second degree; and unlawful imprisonment in the first degree. The State of Delaware ("the State") thereafter filed an information charging defendant with rape in the first degree and kidnapping in the second degree.
On March 27, 2000, defendant entered into a Robinson plea to charges of rape in the second degree (a lessor-included of rape in the first degree) and kidnapping in the second degree. On that date, defendant was sentenced on the rape in the second degree conviction to ten (10) years at Level 5, with credit for time served, and on the kidnapping in the second degree conviction to two (2) years at Level 5. This latter sentence is to be served consecutive to the first.
This label references a plea taken in accordance with Robinson v. State, Del.Supr., 291 A.2d 279 (1972). A Robinson "plea is for all purposes a guilty plea." Johnson v. State, Del.Supr., 560 A.2d 490 (1989).
Defendant did not file an appeal.
On January 4, 2001, defendant filed this Rule 61 motion. The sole ground for relief which defendant asserts is that he was denied access to consul notification. More specifically, he alleges the police did not notify him, at the time of his arrest, that he had the right to contact the Mexican Embassy nor did they tell him of his right to contact consul before his statement.
In a motion to suppress filed on February 1, 2000, defendant advanced the following reason for why evidence should be suppressed: "[T]he Defendant is a foreign national and no attempt was made to contact his embassy or other representative of his government." Defendant thereafter knowingly, intelligently, and voluntarily entered into his guilty plea. In doing so, defendant waived his right to assert he was denied his right to contact the consulate. Hickman v. State, Del.Supr., No. 298, 1994, Veasey, C.J. (October 11, 1994) at 3-4; Palmer v. State, Del.Supr., No. 68, 1994, Moore, J. (May 5, 1994) at 2; Smallwood v. State, Del.Supr., 599 A.2d 414 (1991) (The Supreme Court quotes from Tollett v. Henderson, 411 U.S. 258, 267 (1973), as follows: "`When a criminal defendant has solemnly admitted in open court that he is in fact guilty of the offense with which he is charged, he may not thereafter raise independent claims relating to the deprivation of constitutional rights that occurred prior to the entry of the guilty plea.'"); Fullman v. State, Del.Supr., 560 A.2d 490 (1989) ("[A] guilty plea . . . constitutes a waiver of possible defenses.") Thus, the claim is procedurally barred.
Even if defendant had not waived the right to assert this claim, the claim fails because defendant has not set forth sufficient assertions, as required pursuant to Barrow v. State, Del.Supr., 749 A.2d 1230, 1242 (2000), to establish he even has a claim. He has not submitted evidence showing that at the time of his arrest, he was a national to whom Article 36 of the Vienna Convention on Consular Relations and Optional Protocol Disputes applies. Even if that article does apply, he has not identified "the specific due process rights denied to him by the police officers' alleged failure to inform him of his Article 36 entitlement and has failed to explain how the . . . [Mexican] Consulate could have assisted his defense in any way." Id. Consequently, defendant has failed to state a valid claim.
For the foregoing reasons, I deny the Rule 61 motion.
IT IS SO ORDERED.