Opinion
I.D. No. 0905005849
12-09-2015
Re: State of Delaware v. Jose Vazquez
cc: James J. Kriner, Esquire, Deputy Attorney General, Department of Justice, Wilmington, Delaware
JOHN A. PARKINS, JR. JUDGE Jose Vazquez
SBI 49
James T. Vaughn Correctional Center
1181 Paddock Road
Smyrna, Delaware 19977 Dear Mr. Vazquez:
This letter is about your motion to withdraw your guilty plea. Apparently you filed it in Kent County on July 14, 2014. Kent County is the wrong county because you were convicted and sentenced in New Castle County. The matter was not filed in New Castle County until September 8, 2015.
A brief history of your case is in order.
• In August 2009 you entered a plea of guilty to a charge of Escape After Conviction and you were sentenced to Level 5 suspended after successful completion of KEY for decreasing levels of probation. That sentence was modified at your request to remove the requirement of participation in Key
and (after one year at Level 5) to require CREST and CREST Aftercare as part of your probation.
• In June 2010 you were found to be in violation of your probation and you were sentenced to three years Level 5 followed by probation. You appealed that finding and sentence to the Delaware Supreme Court, but later voluntarily dismissed that appeal.
• In April 2014 you were again found in violation of your probation. You were sentenced to six months at Level 5 with no probation to follow.
• Your present motion to withdraw your guilty plea consists of a series of generalities, and concludes with the following:
This motion is to keep open the 30 day notice of appeal. Inform the Court he wants his plea withdraw in respect to Justice and the court to revisit the true actions Defendant displayed which lead to a conviction of First Degree Escape instead of what should have been Escape Third for "simple absconder."
The rules of this court provide that a defendant who wishes to withdraw a guilty plea after he or she has been sentenced must do so by filing a motion pursuant to Criminal Rule 61. Superior Court Criminal Rule 32(d). Rule 61 is the exclusive post-conviction remedy available in this state and applies only to "a person in custody under a sentence of this court seeking to set aside the judgment of conviction." Where a defendant has completed his sentence and is no longer subject to incarceration under that sentence, he or she lacks standing to bring a Rule 61 motion and any such motion must be dismissed. Ruiz v. State 2011 WL 2651093 (Del. 2011).
In your case it is apparent that you have completed your sentence. Your April 2014 sentence provided for six months of Level 5 incarceration with no probation to follow. Accordingly you lack standing to bring the present motion, and it is therefore DISMISSED.
Very truly yours,
John A. Parkins, Jr. oc: Prothonotary cc: James J. Kriner, Esquire, Deputy Attorney General, Department of Justice, Wilmington, Delaware