IN THE SUPREME COURT OF THE STATE OF DELAWARE

SAMUEL BALTAZAR, §
§ No. 92, 2014
Defendant Below, §
Appellant, § Court Below — Superior Court
§ of the State of Delaware,
V. ~§ in and for Sussex County
§
STATE OF DELAWARE § Cr. ID No. 1104009636
§
Plaintiff Below, . §
Appellee. §

Submitted: January 14, 2015
Decided: January 20, 2015

Before HOLLAND, RIDGELY, and VAUGHN, Justices.
M

This 20th day of January, 2015, it appears to the Court that:

(1) The Defendant Below/Appellant Samuel Baltazar (“Baltazar”) was
indicted for Unlawful Sexual Contact First Degree and Endangering the Welfare of
a Child, both of which are felonies. On August 23, 2011, Baltazar entered a
Robinson1 Plea to the lesser included misdemeanor offenses of Unlawful Sexual
Contact Third Degree and Endangering the Welfare of a Child. Thereafter, he was
sentenced. This is an appeal from the Superior Court’s denial of Baltazar’s Motion
to Vacate Conviction under Superior Court Criminal Rule 35 and Motion for Post-

Conviction Relief under Supreme Court Criminal Rule 61.

1 Robinson v. State, 291 A.2d 279 (Del. 1972).

(2) We have determined that the Superior Court did not abuse its
discretion in refusing to vacate Baltazar’s conviction because Rule 35 does not
permit vacating a conviction, but is limited to applications for either modiﬁcations
or corrections of sentences. We have also concluded that the Superior Court did
not abuse its discretion in refusing to grant Baltazar Rule 61 Motions for Post-
conviction Relief for two reasons: ﬁrst, because Baltazar lacks standing to bring a
claim under Rule 61; and second, because Baltazar’s Rule 61 motion is time-
barred.

(3) Baltazar is a native and citizen of Guatemala. He was granted Lawﬁll
Permanent Resident Status on December 1, 1990. He entered into a Robinson Plea
on August 23, 2011 to the charges of Unlawful Sexual Contact Third Degree and
Endangering the Welfare of a Child. The Plea Agreement Form stated that the
“defendant understands that this plea may affect his immigration status.” The
Truth In Sentencing Form provided that the defendant acknowledged the following
language: “NON-CITIZENS: Are you aware that conviction of a criminal offense
may result in deportation/removal, exclusion from the United States, or denial of
naturalization?” The answer was marked “YES.” Counsel also stated the
following:

I’ve explained to him that, even though this isn’t a felony, it might

have ramiﬁcations regarding this status in this country. He’s legal.

He has permanent legal residency, but this may affect his ability to
stay in the county, and he’s aware of that.

(4) Baltazar entered his plea with the help of an interpreter. His counsel
told the Superior Court that he had reviewed all the forms with Baltazar through
the interpreter. Baltazar testiﬁed that his attorney had reviewed the guilty plea
form with him line—by-line. The Superior Court accepted the plea as knowingly,
voluntarily and intelligently offered.

(5) Baltazar was then sentenced as follows:

S11-04-1 128: Unlawful Sexual Contact Third Degree: 6 months at
Supervision Level 5, suspended for 1 year at Supervision Level 3 Probation
(consecutive to S11—04-1129).

S11—04-1129: Endangering the Welfare of a Child: 12 Months at
Supervision Level 5, suspended for 12 months at Supervision Level 3 probation.

(6) Baltazar successfully completed Level 3 Probation and was
subsequently granted an “early discharge” from Probation by the Superior Court,
Sussex County, on or about August 14, 2012. Immigration and Customs
Enforcement requested certiﬁed copies of the Indictment, Plea Agreement and
Sentence Order in January 2013, initiated deportation proceedings against Baltazar
and took him into custody on or about April 9, 2013. Baltazar was ordered to be
deported on or about September 5, 2013.

(7) Baltazar ﬁled a pro se Rule 61 Motion for Post-Conviction Relief on

October 9, 2013. He alleged that his counsel was ineffective for not properly

advising him of the immigration consequences prior to the entry of the plea,
because he would face the virtual certainty of his removal from the United States.
He also claimed he was denied his right to speedy trial because he was quickly
persuaded to enter a plea and he was not provided with a copy of the indictment.
He alleged he did not have an opportunity to review the Grand Jury minutes and
was forced into a plea without an opportunity to evaluate the matter. Baltazar
claimed he was coerced into confessing and entering the guilty plea. According to
Baltazar, he had no education and could not understand his lawyer based on his
limited English and was misled by counsel telling him not to proceed to trial
because he would not succeed.

(8) Current counsel was then appointed by the Superior Court to represent
Baltazar in his Rule 61 Motion for Post-Conviction Relief. Counsel ﬁled a Motion
to Vacate Conviction on or about January 8, 2014. The motion sought to vacate
Baltazar’s convictions for Unlawful Sexual Contact Third Degree and Endangering
the Welfare of a Child based on the “collateral legal disabilities rule” that was
identiﬁed by this Court in Gum] v. State.2 The motion argued that Baltazar’s
deportation order was an “extraordinary circumstance” and constituted a “collateral
legal disability” ﬂowing from his convictions and that his convictions should be

vacated. The Superior Court ruled that Baltazar received appropriate collateral

2 251 A.2d 344, 345 (Del. 1969).

consequence warnings based on the language in the Plea Agreement Form and
Truth In Sentencing Form and found there was no extraordinary circumstance.

(9) In response to the Superior Court’s ruling, Baltazar’s counsel
submitted an Amended Motion to Vacate Conviction under Superior Court
Criminal Rule 35. In this motion, counsel acknowledged Baltazar had been
adequately advised before he entered his guilty pleas. Counsel admitted in a
footnote that he misunderstood the applicable standard and requested the Superior
Court to consider Baltazar’s arguments in the interests of justice. The State was
opposed to any form of relief for Baltazar.

(10) The Superior Court issued a decision on February 5, 2014, denying
Baltazar’s Rule 61 Motion for Post-Conviction Relief and Motion to Vacate
Conviction and the Rule 35 Amended Motion to Vacate Conviction. The Superior
Court held that Baltazar had been fully advised of the potential impact of the
convictions on his immigration status. The Superior Court also held that the
pending deportation matter did not constitute an extraordinary circumstance.

(11) The record reﬂects that the Superior Court did not abuse its discretion
in refusing to vacate Baltazar’s sentence under Rule 35. In Gural v. State, this
Court adopted the “federal rule” that “satisfaction of the sentence renders the case
moot unless . . . the defendant suffers collateral legal disabilities.” This Court has

held that “collateral consequences, such as inability to engage in certain business

activities or restricted civil rights, could be grounds to permit relief after the
completion of a sentence.”

(12) Superior Court Criminal Rule 35(b) provides that the Superior Court
may consider a motion for the reduction status of a sentence made more than
ninety days after imposition of a sentence only in extraordinary circumstances. In
State v. Lewis,3 this Court held that the risk of deportation might amount to
extraordinary circumstances despite the fact that the defendant’s sentence had
already been served. This Court found the Superior Court did not abuse its
discretion in modz'ﬁ/z'ng a sentence that had already been served when it considered
the nature of the original sentence; the time defendant spent actually incarcerated;
possible deportation of the defendant; and the hardship on innocent persons that
would result from the defendant’s deportation.

(13) Unlike the modiﬁcation request in Lewis, Baltazar seeks to have his
sentence vacated. Superior Court Criminal Rule 35 is limited to modifying or
correcting a sentence, not vacating a conviction. In Lewis, this Court held that
Rule 35 is unambiguous. Since the plain language does not include vacating a

sentence, the Superior Court properly held that Baltazar was not entitled to relief

under Rule 35.

3 State v. Lewis, 797 A.2d 1198 (Del. 2002).

(14) The record also reﬂects the Superior Court did not abuse its discretion
when it denied Baltazar’s Rule 61 Motion For Post-conviction Relief. In his pro se
motion for postconviction relief, Baltazar asserted several claims, including the
argument that his counsel was ineffective for failing to advise him of the
immigration consequences of the convictions to which he pleaded guilty. Then, in
a letter to the Superior Court, Baltazar conceded that he had received “adequate
and sufﬁcient notice of the potential collateral consequences to his immigration
status to withstand scrutiny of prior counsel’s performance.” The Superior Court
denied Baltazar’s motion for postconviction relief, noting that Baltazar had
recognized that Rule 61 was not the appropriate path for procedural relief on a
collateral consequences claim that was independent of an ineffective assistance of
counsel claim.4

(15) On appeal, however, Baltazar asks this Court to ﬁnd his counsel was
ineffective based on the argument that, at the time of his plea, his conviction would
have resulted in certain deportation, while his attorney merely advised him that it
would result in a risk of deportation.5 He requests that his case be remanded to the
Superior Court for an evidentiary hearing.

(16) This Court has held that a defendant who has been discharged from

probation and is not subject to any future custody for his conviction has no

4 State v. Lewis, 797 A.2d 1198 (Del. 2002).
5 Padilla v. Kentucky, 559 US 356 (2010).

standing to seek relief under Rule 61..6 Baltazar was discharged from probation on
August 9, 2012. Therefore, he lacks standing to pursue a claim under Superior
Court Criminal Rule 61 for ineffective assistance of counsel.

(17) Even if Baltazar did have standing, his claim still fails because it is
procedurally barred under Rule 61(i)(l) as untimely. The Superior Court found
Baltazar’s motion for postconviction relief to have been timely ﬁled. However,
that ﬁnding is not supported by the record. Baltazar had one year to ﬁle a motion
for postconviction relief from the date his conviction became ﬁnal. Under Rule
61(m)(1), Baltazar’s conviction became ﬁnal thirty days after August 23, 2011, the
date when the Superior Court imposed his sentence. He did not ﬁle his motion for
postconviction relief until October 9, 2013, more than two years later. Baltazar is
not asserting a retroactively applicable right that is newly recognized to justify
exception from the time bar of Rule ‘61. Therefore, consideration of his Rule 61
postconviction relief is barred as untimely.

NOW, THEREFORE, it is hereby ordered that the judgment of the Superior
Court is afﬁrmed.

BY THE COURT:

Justice %

6 Ruiz v. State, 2008 WL 1961187, *2 (Del. May 7, 2008).

