State of Delaware v. Baltazar.

IN THE SUPERIOR COURT OF THE STATE OF DELAWARE
IN AND FOR NEW CASTLE COUNTY
STATE OF DELAWARE )
)
)
v. ) ID No. 1204000588
)
ANTONIO BALTAZAR, )
)
Defendant. )
)
ORDER
1. Defendant entered a guilty plea to four counts of Robbery in
the First Degree and one count of Burglary in the Second Degree, and he
was sentenced in June, 2013 to 25 years at Level 5 followed by
probation. A year and a half after he was sentenced Defendant
apparently had second thoughts and he now seeks to withdraw his guilty
plea. This is the court’s ruling on that application.
2. Motions to withdraw guilty pleas after sentencing must be
brought pursuant to Criminal Rule 61. 1 As in all other Rule 61 motions,
this court is required to determine whether it is procedurally barred
before reaching the merits. 2
1 Criminal Rule 32(d).
2 Teagle v. State, 755 A.2d 390, 2000 WL 949646, at *1 (Del. 2000) (TABLE); Stone v.
State, 690 A.2d 924, 925 (Del. 1996).
3. Defendant’s motion is procedurally barred. Rule 61(i)(1)
provides:
A motion for postconviction relief may not be
filed more than one year after the judgment of
conviction is final or, if it asserts a retroactively
applicable right that is newly recognized after
the judgment of conviction is final, more than
one year after the right is first recognized by the
Supreme Court of Delaware or by the United
States Supreme Court. 3
Defendant does not satisfy the exception to Rule 61(i)(1) imbedded within
that rule because he does not allege the existence of a newly recognized
retroactive right. He must find any relief to the procedural bar, therefore,
in the catchall exception in Rule 61(i)(5).
4. The catchall provision in Rule 61(i)(5) excuses a procedural
default if the defendant’s claim “satisfies the pleading requirements of
subparagraphs (2)(i) or 2(ii) of subdivision of this rule.” The pertinent
subparagraphs of subdivision 2 excuse a procedural default if the
defendant:
(i) pleads with particularity that new evidence
exists that creates a strong inference that the
movant is actually innocent in fact of the acts
underlying the charges of which he was
convicted; or
(ii) pleads with particularity a claim that a new
rule of constitutional law, made retroactive to
cases on collateral review by the United States
Supreme Court or the Delaware Supreme Court,
applies to the movant's case and renders the
conviction or death sentence invalid.
3 Sup. Ct. Crim. R. 61(i)(1)
2
As stated earlier, Defendant does not plead a new rule of constitutional
law which has been made retroactive, and therefore he cannot satisfy
subparagraph (ii).
5. Turning to subparagraph (i), Defendant has not pleaded any
new evidence that “creates a strong inference that [he] is actually
innocent.” His guilty plea effectively forecloses such a showing here. His
plea to Count 36 (Robbery in the First Degree) illustrates this. After the
charges in count 36 were summarized for Defendant, the court asked
him “How do you plead to this: guilty or not guilty?” whereupon
Defendant responded “Guilty.” The court then satisfied itself that the
defendant had in fact committed the offense:
THE COURT: And is it true, sir, that on or
about March the 26th of 2012 in this county you
held up Khawaja Butt?
THE DEFENDANT: Yes.
THE COURT: And that you took money; is it Ms.
or Mr. Butt?
THE DEFENDANT: Miss.
THE COURT: That you took property from Ms.
Butt?
THE DEFENDANT: Yes.
THE COURT: And at this time you suggested to
her by word or conduct that you had a gun with
you?
THE DEFENDANT: Yes.
3
It is difficult to envision how Defendant could introduce evidence he is
actually innocent of the crime when he admitted to the court that he took
money from the victim while suggesting to the victim that he had a gun.
Putting aside the theoretical difficulty of showing such evidence under
these circumstances, the instant petition falls far short of the mark.
6. The defendant’s motion does not address the procedural bars.
Rather the gist of his motion is that he is “non-English speaking” and
that his counsel failed to have an interpreter present during their
meetings. The court notes in passing that the record contradicts his
contention. Rather it demonstrates that the defendant understands
English. An interpreter was present during defendant’s plea colloquy,
and defendant was told by the court that “if at any time you do not
understand my English, please don’t hesitate to turn to the interpreter
who is standing next to you.” Not once during the colloquy did the
defendant confer with the interpreter. Defendant’s answers to the court’s
questions throughout the colloquy were appropriate and showed he
understood what was occurring during the proceedings. Indeed, when he
was asked “do you have any difficulty in hearing me or in understanding
what is happening in court today?” defendant responded “no.”
7. Defendant’s contention that, because of a language barrier, he
was unable to communicate with his counsel is also belied by
representations made by the defendant in connection with his plea. One
4
of the forms signed by the defendant required him to respond to the
following question:
Are you satisfied with your lawyer’s
representation of you, and that your lawyer has
fully advised you of your rights? 4
Defendant responded to this question “yes.” He admitted during the plea
colloquy that he had an interpreter available to him when he completed
this form and that he understood the form:
THE COURT: Mr. Rivera [an alias of defendant]
would you please take a look at the Truth-in-
Sentencing form. Did Mr. Barber review this
with you?
THE DEFENDANT: Yes.
THE COURT: Was there an interpreter present
at the time he reviewed this with you?
THE DEFENDANT: Yes.
THE COURT: Did you have an opportunity to
ask him any questions you might have about it?
THE DEFENDANT: Yes.
THE COURT: If you asked him any questions,
did he answer them to your satisfaction?
THE DEFENDANT: Yes.
THE COURT: Did you sign this document?
THE DEFENDANT: Yes.
THE COURT: Did you sign it because you
understand what it means?
THE DEFENDANT: Yes.
4 Emphasis in original.
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8. Defendant asks the court to appoint counsel for him. Rule 61
permits the court to appoint counsel for Rule 61 petitioners in certain
limited circumstances. In cases in which a defendant seeks post-
conviction relief after entry of a guilty plea, the rule provides that the
court “may appoint counsel for an indigent movant's first timely
postconviction motion and request for appointment of counsel if the
motion seeks to set aside a judgment of conviction that resulted from a
plea of guilty or nolo contendere only if the judge determines . . . .” 5 A
necessary predicate under the rule for appointment of counsel is that the
underlying motion for post-conviction relief must be timely. As discussed
earlier, the instant motion is untimely, and therefore the court will not
appoint counsel.
WHEREFORE, Defendant’s motion for appointment of counsel is
DENIED and his motion to withdraw his guilty plea is DISMISSED
because it is procedurally barred.
Dated: February 27, 2015
John A. Parkins, Jr.
Superior Court Judge
oc: Prothonotary
cc: Antonio Baltazar, SBI 005, JTVCC, Smyrna, Delaware
Joseph S. Grubb, Esquire, Department of Justice, Wilmington,
Delaware
5 Sup. Ct. Crim. R. 61(e)(2) (emphasis added).
6