Opinion
Cr.A. No. IN89-05-0117, ID#91000965D1.
Date Submitted: August 28, 2000.
Date Decided: October 27, 2000.
UPON THE STATE'S MOTION TO VACATE ORDER DENIED
Paul R. Wallace, Esq., Deputy Attorney General, Carvel State Building, 820 North French St., Wilmington, DE 19801. Attorney for the State.
Christopher D. Tease, Esq., 1232 North King St., Suite 1, Wilmington, DE 19801. Attorney for Defendant.
MEMORANDUM OPINION
On this 27th day of October, 2000, having considered the State's Motion to Vacate this Court's July 6, 2000 Order it is hereby denied for the reasons set forth below:
On July 26, 1991 Defendant was sentenced to eight years at Level V suspended for one year at Level IV to be followed by six months at Level III. Defendant petitioned the Court for reduction of the Level V period to less than twelve months in hopes of avoiding deportation. It was Defendant's contention that the hardship to his family that would result if he were to be deported constitutes extraordinary circumstances as prescribed by Superior Court Criminal Rule 35(b). Accordingly, Defendant petitioned the Court to exercise its discretion and modify the original sentence; which the Court granted pursuant to its July 6, 2000 Order.
Super. Ct. Crim. R. 35(b) (provides in pertinent that "[t]he [C]ourt will consider an application [for modification of sentence] made more than 90 days after the imposition of sentence only in extraordinary circumstances or pursuant to 11 Del. C. § 4217.")
The State now moves this Court to vacate the Order. The State questions whether this Court had jurisdiction to modify Defendant's sentence in light of the fact that the sentence has expired. The State contends that since the General Assembly gave specific statutory authority over a sentence where a defendant is in custody under 11 Del. C. § 4217 it stands to reason that at some point the Court loses jurisdiction; i.e., at the expiration of the sentence.
The State further argues that although deportation may result from some convictions it is merely a collateral consequence and therefore should not serve as a basis for relief. The State argues that as a mere collateral consequence, the possibility of deportation does not rise to the level of extraordinary consequences as pronounced in Superior Court Criminal Rule 35(b). The State contends that if the Court were to find that extraordinary consequences exist under these circumstances it would be an invitation to "all defendants who can find some colorable collateral consequence to reach into and upset the finalized convictions and sentences."
In addition, the State posits that modifying Defendant's sentence so that he can avoid deportation could violate the separations of powers between the judiciary and the executive (immigration) authority. The State cites to several federal district court opinions that note this concern when petitioned by defendants for writs to vacate criminal convictions to evade deportation. The State argues that "[n]ot only does [Defendant] ask this Court to usurp the Federal executive power to regulate immigration; he asks this Court to re-write and pervert the history of his criminality in order to do so."
In response to the State's Motion to Vacate, Defendant argues that the Court retains jurisdiction pursuant to Rule 35(b). Defendant argues that it is clear that Rule 35(b) permits the Court to consider motions for reduction of sentence in extraordinary circumstances. Although Defendant admits that the language "more than 90 days after the imposition of the sentence only in extraordinary circumstances," is intended to discourage stale claims; Defendant argues that Rule 35 nevertheless provides for the right of a defendant to file a motion "at any time" under "extraordinary circumstances." In addition, Defendant contends that "[while] the consequences may be considered collateral for the purpose of withdrawing a plea, they are extraordinary for the purpose of Superior Court Criminal Rule 35."
Assuming the Court to have jurisdiction to consider the motion, Defendant argues that the hardship to him and his family that would derive from his deportation constitutes extraordinary circumstances under Rule 35(b). Defendant asserts that (i) he has been in the United States since 1976; (ii) he is married; and (iii) he has three school aged children. Defendant has also submitted a number of letters from family, friends, employers and state dignitaries attesting to the devastating impact Defendant's deportation would have on his wife and children.
The Court finds that it had jurisdiction to consider Defendant's Petition for Modification of Sentence. In Gural v. State the petitioner filed an appeal to the Delaware Supreme Court from an adverse decision of the Superior Court stemming from a postconviction relief motion. The petitioner filed the appeal while incarcerated but was released prior to judgment and the State moved to dismiss on the ground of mootness. The Gural Court unequivocally adopted the "collateral consequences" rule which states that:
Gural v. State, Del. Supr., 251 A.2d 344 (1969).
The satisfaction of the sentence renders the case moot unless, in consequence of the conviction or sentence, the defendant suffers collateral legal disabilities or burdens; in which event the defendant is considered to have a sufficient stake in the conviction or sentence to survive the satisfaction of the sentence and permit him to obtain review or institute a challenge.
Id. at 344-45.
The Court finds that the Gural holding is applicable to a Rule 35(b) motion and deportation is a "collateral legal disability" in which Defendant has a sufficient stake in to survive the satisfaction of the sentence which would otherwise render his petition moot. Additional support comes from United States v. Romero-Vilca in which the petitioner, who was facing deportation, filed a motion pursuant to a Federal statute to vacate his conviction. In applying the holding from Carafas v. LaValle, which involved a writ of habeas corpus, the Romero-Vilca Court held that the defendant's "petition [was] not moot in light of the potential for deportation that flows from his conviction."
United States v. Romero-Vilca, 850 F.2d 177 (3rd Cir. 1988).
Carafas v. LaVallee, 391 U.S. 234, 88 S.Ct. 1556, 20 L.Ed.2d 554 (1968) (involving a writ of habeas corpus).
Romero-Vilca, 850 F.2d at 178 (reciting the Carafas Court holding "that a request for relief from a judgment of sentence does not become moot upon the satisfaction of that sentence when burdensome collateral consequences flow from the judgment of conviction and survive the satisfaction of the sentence.").
Having decided that this claim is not moot the Court must now address whether Defendant's circumstances rise to the level of extraordinary circumstances as required by Rule 35(b). The law in Delaware is settled that deportation is a collateral consequence of a guilty plea. Therefore, a defendant is not entitled to relief when the Court or defense counsel fails to inform a defendant that deportation could result from entering a guilty plea.
See State v. Christy, Del. Supr., 655 A.2d 836 (1994); State v. Modi, Del. Super., Cr.A. No. 9508011619, Alford, J. (Sept. 25, 1998) (ORDER); Romero-Vilca, 850 F.2d at 178.
See Christy, 655 A.2d at 837, 838; Modi at 1, 2.
However, the Court does not construe this to mean that collateral consequences can never constitute extraordinary circumstances under Rule 35(b). The Court finds that there is a distinction as between a defendant who seeks to withdraw his guilty plea and a defendant who merely requests modification of the Court's sentencing order. In the instant case, Defendant asked that his original sentence, eight years at Level V suspended for eighteen months of probation, be modified to eleven months at Level V suspended for probation. The Court noted that the original sentence was rather unusual in that the eight years imposed of incarceration imposed was suspended for a probationary period of a mere eighteen months; and Defendant served a total of thirty-one days incarcerated, including the days he was held for violations of probation.
The State argues that the Court's July 6, 2000 Order rewrites history. However, it is clear that the intent of the court was to have a long probationary period rather than a lengthy period of incarceration. It has been recognized that deportation is an extreme action which may result in extreme hardship on a defendant's family who are innocent parties. The State argues that a finding of the existence of extraordinary circumstances in this situation will "invite all defendants who can find some colorable collateral consequence to reach into and upset finalized convictions and sentences." However, the Court finds that any decisions finding extraordinary circumstances under Rule 35(b) must be done in light of the unique set of facts presented in each case. In the case sub judice, the Court finds that: 1) the nature of the original sentence; 2) the time Defendant spent actually incarcerated; 3) possible deportation of Defendant; and 4) the hardship on innocent persons that would result from Defendant's deportation, viewed collectively, constitute extraordinary circumstances pursuant to Rule 35(b).
For the foregoing reasons the Court DENIES the State's Motion to Vacate and hereby lifts the stay of its July 6, 2000 Order modifying Defendant's original sentence.
IT IS SO ORDERED.