             IN THE SUPERIOR COURT OF THE STATE OF DELAWARE
                      IN AND FOR KENT COUNTY


STATE OF DELAWARE,                           )
                                             )
      v.                                     )
                                             )     I.D. No. 1112020007
PATRICK OWUSU,                               )
                                             )
                   Defendant.                )

                         Date Submitted: January 9, 2015
                         Date Decided: January 29, 2015

             ORDER DENYING PATRICK OWUSU’S MOTION
                 FOR APPOINTMENT OF COUNSEL

      This 29th day of January, 2015, upon consideration of the Motion for

Appointment of Counsel filed by Defendant, Patrick Owusu; the Superior Court

Rules of Criminal Procedure; the facts, arguments and legal authorities set forth in

Defendant’s Motion; statutory and decisional law; and the entire record in this

case, including the transcript of the plea colloquy and imposition of sentence by

the Court finds as follows:

      1.     On June 26, 2012, Defendant pled guilty to Assault Second Degree

and Receiving Stolen Property valued over $1,500.00, pursuant to a Plea

Agreement between the State and Defendant, which Defendant signed. Pursuant to

Superior Court Criminal Procedural Rule 11(c)(1), the Court addressed Defendant

personally in open court and determined that Defendant understood the nature of
the charges to which the plea was offered, the mandatory minimum penalty

provided by law, if any, and the maximum possible penalty provided by law.

      2.     During colloquy, the Court asked Defendant if he was an American

citizen, to which Defendant responded “No.”               Defendant, born in Ghana,

acknowledged his understanding that pleading guilty to a felony could subject him

to deportation.     Defendant explained on that record that the immigration

consequences associated with pleading guilty to a felony were critical in his

decision-making process.        Specifically, Defendant responded to the Court’s

warning of deportation risks with the following:

      Well I understand that, that’s why I be going back and forth with this
      stuff, [be]cause . . . I understand I made a mistake and I’m willing to
      own up to the mistake I made . . . . [and] due to my status of a green
      card . . . any criminal record against me is going to hurt against me
      every time I go to [the] airport or immigration status.” 1

      Accordingly, Defendant acknowledged his understanding of the deportation

risks associated with pleading guilty to a felony. In addition, Defendant signed a

truth-in-sentencing form acknowledging that conviction of a criminal offense may

result in deportation.

      3.     Furthermore, Defendant acknowledged in open court that he was

facing even more serious charges than the charges to which he pled guilty.

Defendant received the benefit of his strategic bargain when the State agreed to

1
  State v. Owusu, I.D. No. 1112020007, at 21:3-12 (Del. Super. June 26, 2012) (Herlihy, J.)
(TRANSCRIPT).
                                            2
dismiss the more serious charges in exchange for Defendant’s guilty plea.

Defendant’s counsel explained on the record that based on the circumstances

underlying Defendant’s charges—including Defendant’s admission to Police—

Defendant understood the risks associated with proceeding to trial and Defendant

would benefit from entering a plea under which the State would recommend a

sentence of probation rather than jail. Defendant acknowledged in open court that

the judge was not bound by the State’s recommendation and that the range of

possible penalties included the sentence the Court imposed.

         4.     On September 4, 2014, Defendant filed a motion for reduction or

modification of his sentence.          The Court denied Defendant’s motion. 2            Now,

Defendant has filed a motion for appointment of counsel “to represent [Defendant]

in further proceedings with regard to his case.” It is unclear if Defendant seeks

appointment of counsel to file a second motion for reduction or modification of his

sentence or to pursue postconviction relief.

         5.     With respect to Defendant’s sentence, the sentence imposed was well

within the statutory sentencing scheme, and Defendant acknowledged on the

record that that Court was not bound by the State’s sentencing recommendation.

The sentence imposed by the Court is appropriate for all the reasons stated at the




2
    State v. Owusu, I.D. No. 1112020007 (Del. Super. Nov. 7, 2014) (Rocanelli, J.) (ORDER).
                                                3
time of sentencing. No additional information has been provided to the Court that

would warrant a reduction or modification of this sentence.

       6.     With     respect    to   postconviction      relief, even      if   Defendant’s

postconviction motion qualified for review on the merits, Defendant is not entitled

to appointment of postconviction counsel because Defendant entered a plea of

guilty. Superior Court Criminal Rule 61(e)(2) governs the appointment of counsel

for first time motions for postconviction relief from convictions resulting from

guilty pleas. The Court has the discretion to appoint counsel if the postconviction

motion sets forth a substantial claim of ineffective assistance of counsel, among

other things. Defendant is not entitled to appointment of postconviction counsel;

counsel represented Defendant when he pled guilty. 3                   The Court accepted

Defendant’s guilty plea as knowing, intelligent, and voluntary.                   The record

demonstrates that both Defendant’s counsel and the Court explained the

immigration consequences associated with pleading guilty to a felony. 4 Moreover,

the record shows that Defendant’s counsel explained, and Defendant understood,

the risks associated with proceeding to trial and the length of jail time Defendant

could serve if convicted by a jury. Likewise, Defendant’s counsel explained the

3
  See McMann v. Richardson, 397 U.S. 759, 771 (1970) (holding that a defendant is entitled to
effective counsel before deciding whether to plead guilty). See also Strickland v. Washington,
466 U.S. 668, 688, 694 (1984) (evaluating the effectiveness of counsel’s representation under an
“objective standard of reasonableness” and whether “there is a reasonable probability that, but
for counsel’s unprofessional errors, the result of the proceeding would have been different.”).
4
  See Padilla v. Kentucky, 559 U.S. 356, 374 (2010) (holding that defense counsel “must inform
[a defendant] whether his plea carries a risk of deportation.”).
                                               4
benefits of entering a guilty plea and serving probation as well as the disadvantages

with respect to immigration status.

      7.     Defendant is not entitled to appointment of counsel in connection with

this matter. Defendant’s sentence is well within the statutory sentencing scheme,

and Defendant acknowledged that that Court was not bound by the State’s

sentencing recommendation under the Plea Agreement. Further, Defendant was

represented by counsel when he pled guilty and was sentenced.             Defendant

understood the immigration consequences and the possible penalties he faced for

his conviction. Accordingly, for the reasons stated above, this Court finds that

Defendant has not demonstrated cause for the relief sought.

      NOW, THEREFORE, IT IS HEREBY ORDERED that Defendant’s

Motion for Appointment of Counsel is DENIED.

      IT IS SO ORDERED.

                                       Andrea L. Rocanelli
                                       ____________________________________
                                       The Honorable Andrea L. Rocanelli

Original to Prothonotary:
cc: Patrick Owusu (SBI#00709047)
      Investigative Services




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