Opinion
Crim. Id. No. 9911014385
Submitted: September 20, 2001
Decided: October 1, 2001
ORDER
This 1st day of October 2001, upon consideration of Defendant's motion for postconviction relief under Superior Court Criminal Rule 61, it appears that:
(1) The Defendant, who was born in Jamaica and is a resident alien, was charged with Resisting Arrest, Rape in the Second Degree, Rape in the Third Degree, and Rape in the Fourth Degree. On September 6, 2000, the Defendant pled guilty to Resisting Arrest. The Defendant signed a guilty plea form in conjunction with that offense. The guilty plea form stated, "Non-Citizens: Conviction of a criminal offense may result in deportation, exclusion from the United States, or denial of naturalization." Defense counsel, Adam L. Balick ("Balick"), reviewed and read the guilty plea form to the Defendant. The Defendant admitted to reading, signing, and understanding the guilty plea form during the plea colloquy. Thus, the Court found that the Defendant entered his plea knowingly, voluntarily, and intelligently.
Defendant's Mot. for Postconviction Relief at 38, State v. Fowler, Crim. Id. No. 9911014385 (2001).
Id. at 18, 21.
The colloquy went as follows:
THE COURT: This Truth in Sentencing guilty plea form, did you read this form? THE DEFENDANT: Yes, I did. THE COURT: Did you review it with your attorney? THE DEFENDANT: Yes. THE COURT: Did you understand what it says? THE DEFENDANT: Yes. THE COURT: And have you signed it? THE DEFENDANT: Yes.
Id.
(2) On September 6, 2000, the Defendant's trial began on the three remaining Rape charges. Instead of continuing with his trial, the Defendant entered into a plea agreement with the State on September 7, 2000. The Defendant pled no contest to two counts of Unlawful Sexual Contact in the Second Degree. Again, the Defendant signed a guilty plea form which states: "Non-Citizens: Conviction of a criminal offense may result in deportation, exclusion from the United States, or denial of naturalization." Defense counsel reviewed and read the guilty plea form to the Defendant. The Defendant admitted to reading, signing, and understanding the guilty plea form during the plea colloquy. Thus, the Court found that the Defendant entered his plea knowingly, voluntarily, and intelligently.
Defendant's Mot. for Postconviction Relief at 38, State v. Fowler, Crim. Id. No. 9911014385 (2001).
Id. at 18, 21.
The colloquy went as follows:
THE COURT: This Truth in Sentencing guilty plea form, did you read this form? THE DEFENDANT: Yes, I did. THE COURT: Did you review it with your attorney? THE DEFENDANT: Yes. THE COURT: Did you understand what it says? THE DEFENDANT: Yes. THE COURT: And have you signed it? THE DEFENDANT: Yes.
Entry of No Contest Plea Tr. at 6-7, State v. Fowler, Crim. Id. No. 9911014385 (September 7, 2000). The colloquy continued as follows:
THE COURT: Do you have any questions of me or of your attorney with regard to this plea? THE DEFENDANT: I guess when — when I'm going to think about it and talk to my attorney — THE COURT: Well, it's important that you understand now before I say that this plea is entered. And why don't you speak to Mr. Balick for a moment. MR BALICK: Thank you, your Honor. Your Honor, he did have some confusion about whether or not he was going to be sentenced immediately or whether that was going to happen in a few months, and I've explained to him, again, that there will be an investigation and that the Court will set sentencing sometime in the future and he does now understand that. THE COURT: Okay. Are you ready to proceed? THE DEFENDANT: Yes, your honor. THE COURT: Do you wish to enter pleas of no contest to those two charges? THE DEFENDANT: Yes, your Honor. THE COURT: Very well, I find the plea to be knowingly, intelligently, and voluntarily entered.
Entry of No Contest Plea Tr. at 6-7, State v. Fowler, Crim. Id. No. 9911014385 (September 7, 2000).
Id.
(3) On December 15, 2000, the Defendant was sentenced. On May 15, 2001, the Defendant was arrested on an Immigration Detainer. The Defendant is now incarcerated by the INS, in the York County Prison in Pennsylvania pending a hearing. On July 6, 2001, the Defendant filed a motion for postconviction relief. A hearing was held on August 27, 2001. During that hearing, Balick testified that he was not familiar with immigration law and that he did not do any research on immigration law. He also stated that he could only remember, with any degree of certainty, one conversation with the Defendant's wife about the possibility of Defendant's deportation. The Defendant contended that he was focused on the criminal sentence he would receive, not the possibility of deportation, when he read and signed this guilty plea form.
Mot. for Postconviction Relief Tr. at 9-16, State v. Fowler, Crim. Id. No. 9911014385 (2001).
Id.
Mot. for Postconviction Relief Tr. at 40, State v. Fowler, Crim. Id. No. 9911014385 (2001).
(4) The Defendant raises two issues in his motion. His guilty plea and no contest pleas were not made knowingly, voluntarily and with a full understanding of the consequences of each plea. Second, his trial counsel was ineffective for failing to advise him that the pleas he entered may cause him to be deported.
(5) A defendant must demonstrate manifest injustice to permit withdrawal of his guilty plea. "A judge who accepts a guilty plea must be satisfied that the plea is entered knowingly and voluntarily." The risk of deportation is a collateral consequence and counsel is not required to advise a defendant of such a risk. The Superior Court has amended its guilty plea form to add cautionary language concerning the effect of a guilty plea on non-citizens. This action was to avoid further misunderstandings in the guilty plea process. In the absence of clear and convincing evidence to the contrary, a defendant is bound by his signed statement on a guilty plea form.
Harris v. State, Del. Supr., No. 550, 1999, 2000 WL 990921, at *3, (Jun. 21, 2001) (ORDER) (internal citations omitted).
Barkley v. State, Del. Supr., 724 A.2d 558, 559 (1999) (citing Sullivan v. State, Del. Supr., 636 A.2d 931, 937, cert. denied, 513 U.S. 833 (1994).
Christie v. State, Del. Supr., 655 A.2d 306, 306 (1994).
Id.
Id.
State v. Miles, Del. Super., No. IN98-06-0665-R1, IN98-06-1463-R1, 1999 WL 743334, at *2, Goldstein, J. (July 7, 1999) (ORDER).
(6) In the case at bar, Defendant's pleas were made knowingly, voluntarily, and intelligently. Defense counsel read and reviewed with the Defendant both guilty plea forms, which contain the warning to non-citizens about the possibility of deportation for criminal convictions. Moreover, the Defendant admitted to reading, signing, and understanding the contents of each guilty plea form. The cautionary language was placed in the guilty plea form to avoid misunderstandings by defendants, such as Mr. Fowler here, regarding the consequences of entering a plea. Since the Defendant read, signed, and understood two guilty plea forms that contained a warning about the possibility of deportation for criminal convictions, his pleas were entered knowingly, voluntarily, and intelligently regarding the possibility of his deportation. Finally, because deportation is a collateral consequence of a guilty plea, defense counsel was under no duty to discuss that possibility with the Defendant.
Christie at 306.
(7) To prove ineffective assistance of counsel the movant must show that: (1) counsel's representation fell below an objective standard of reasonableness and (2) there is a reasonable probability that, but for counsel's alleged errors, the result of the proceedings would have been different.
Strickland v. Washington, 466 U.S. 668, 688, 694 (1988); Albury v. State, Del. Supr., 551 A.2d 53, 58 (1988).
(8) In the case at bar, the Defendant fails to show ineffective assistance of counsel. Defense counsel's reviewing and reading of both guilty plea forms, which contained language warning of the possibility of deportation, is not below an objective standard of reasonableness. Defense counsel informed the Defendant of the possibility of deportation through this review. Moreover, Defense counsel would not have erred if he failed to read and review the possibility of deportation with the Defendant since deportation is only a collateral consequence to a plea. Accordingly, the Defendant's motion for postconviction relief under Superior Court Criminal Rule 61 is DENIED.
Christie at 306.
IT IS SO ORDERED.
Entry of Guilty Plea Tr. at 6-7, State v. Fowler, Crim. Id. No. 9911014385 (September 6, 2000). The colloquy continued as follows:
THE COURT: Is that the charge [Resisting Arrest] that you wish to enter a plea of guilty to now? THE DEFENDANT: Yes. THE COURT: Do you have any questions of me or of your attorney with regard to this charge? THE DEFENDANT: No, your Honor. THE COURT: Are you satisfied that your attorney, Mr. Balick, has fully advised you of your rights and of the consequences of this plea? THE DEFENDANT: Yes, your honor. THE COURT: Okay. Very well. I find the plea to be knowingly, intelligently and voluntarily entered.
Entry of Guilty Plea Tr. at 6-7, State v. Fowler, Crim. Id. No. 9911014385 (September 6, 2000).