         IN THE SUPREME COURT OF THE STATE OF DELAWARE

 OSCAR TERRERO-OVALLES,                   §
                                          §   No. 91, 2019
       Defendant Below–                   §
       Appellant,                         §
                                          §
       v.                                 §   Court Below–Superior Court
                                          §   of the State of Delaware
 STATE OF DELAWARE,                       §
                                          §   Cr. ID 1612003435 (N)
       Plaintiff Below–                   §
       Appellee.                          §

                          Submitted: April 18, 2019
                           Decided: June 3, 2019

Before STRINE, Chief Justice; SEITZ and TRAYNOR, Justices.

                                      ORDER

      After careful consideration of the appellant’s opening brief, the State’s motion

to affirm, and the record on appeal, it appears to the Court that:

      (1)    The appellant, Oscar Terrero-Ovalles, appeals from the Superior

Court’s order denying his first motion for postconviction relief. The State has filed

a motion to affirm the Superior Court’s judgment on the ground that it is manifest

on the face of Terrero-Ovalles’ opening brief that his appeal is without merit. We

agree and affirm.

      (2)    In May 2017, a Superior Court grand jury indicted Terrero-Ovalles for

five counts of drug dealing, five counts of aggravated possession, and one count of

possession of drug paraphernalia. The charges stemmed from a drug investigation
conducted by the Drug Enforcement Administration (“DEA”) with assistance from

a confidential informant. At Terrero-Ovalles’ preliminary hearing, defense counsel

questioned the investigating DEA agent about why Terrero-Ovalles came to the

DEA’s attention and how the DEA conducted its subsequent probe into Terrero-

Ovalles’ activities. In the Superior Court, counsel moved to withdraw and appointed

counsel entered his appearance. On November 13, 2017, Terrero-Ovalles pleaded

guilty to two counts of drug dealing. In exchange for his plea, the State entered a

nolle prosequi on the remaining charges. The Superior Court immediately sentenced

Terrero-Ovalles to an aggregate of sixteen years of Level V incarceration to be

suspended after four years, followed by probation. Terrero-Ovalles did not appeal.

      (3)    In January 2018, Terrero-Ovalles filed a motion to modify his sentence.

The Superior Court denied the motion, noting that each drug dealing charge carried

a minimum mandatory sentence of two years that could not be suspended. On

October 19, 2018, Terrero-Ovalles filed his first motion for postconviction relief

under Superior Court Criminal Rule 61 (“Rule 61”). Terrero-Ovalles argued that (i)

when he was arrested, the police did not show him an arrest warrant or read him his

Miranda rights; (ii) the State’s use of a confidential informant constituted

entrapment, and the State’s investigation was otherwise suspect; (iii) the drug

quantities reflected in State’s laboratory reports differed from the quantities listed in

the indictment; (iv) his trial attorneys were ineffective for failing to raise those



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issues; and (v) his plea was null and void because appointed counsel led him to

believe his final case review was his last case review date and that the State would

not be offering another plea.

       (4)    The Superior Court denied the motion on January 20, 2019, finding that

the majority of Terrero-Ovalles’ claims were procedurally barred under Rule

61(i)(3) and by his knowing and voluntary guilty plea. The Superior Court also held

that Terrero-Ovalles failed to show that trial counsel provided ineffective assistance

of counsel. This appeal followed.

       (5)    This Court reviews the Superior Court’s denial of postconviction relief

for abuse of discretion and questions of law de novo.1 The Court must consider the

procedural requirements of Rule 61 before it addresses any substantive claim.2 Rule

61(i)(3) provides that any ground for relief that was not raised in the proceedings

leading to the judgment of conviction is thereafter barred unless the defendant can

establish cause for relief from the procedural default and prejudice from a violation

of the defendant’s rights. To establish cause, the movant must demonstrate that an

external impediment prevented him from raising the issue earlier.3 In addition, the

movant must show actual prejudice resulting from the alleged error.4




1
  Dawson v. State, 673 A.2d 1186, 1190 (Del. 1996).
2
  Younger v. State, 580 A.2d 552, 554 (Del. 1990).
3
  Id. at 556.
4
  Id.


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         (6)     We agree with the Superior Court’s reasoning that, aside from his

claims of ineffective assistance of counsel, Terrero-Ovalles’ claims could have been

raised in the proceedings below and were therefore procedurally barred under Rule

61(i)(3). Terrero-Ovalles did not attempt to establish cause for relief from the

procedural default or actual prejudice.

         (7)     As the Superior Court also recognized, a defendant who enters a

knowing, intelligent, and voluntary guilty plea waives his right to challenge errors

or defects preceding the entry of the plea.5 The record reflects that Terrero-Ovalles

knowingly, intelligently, and voluntarily pleaded guilty to two counts of drug

dealing. On the Truth-in-Sentencing Guilty Plea Form, Terrero-Ovalles indicated

he freely and voluntarily decided to plead guilty, no one threatened or forced him to

plead guilty, and he understood he was giving up certain constitutional rights by

pleading guilty. Terrero-Ovalles also acknowledged that he faced a prison sentence

of up to fifty years by pleading guilty. During the plea colloquy, Terrero-Ovalles

conceded that, because he is not a citizen of the United States, he faced deportation

as a consequence of pleading guilty. Upon questioning by the Superior Court,

Terrero-Ovalles affirmed that he was freely and voluntarily deciding to plead guilty,

that no one had threatened or forced him to plead guilty, that he was giving up his

right to compel the State to prove every element of the charges he faced, that he was


5
    Miller v. State, 840 A.2d 1229, 1232 (Del. 2003).


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waiving the right to hear and question the State’s evidence, that he was guilty of

selling a controlled substance to a confidential informant on two occasions, that he

faced minimum mandatory prison time for each offense, and that he understood the

Court was not bound by the State’s sentencing recommendation. Absent clear and

convincing evidence to the contrary, Terrero-Ovalles is bound by his representations

to the Court during the guilty plea colloquy and in the Truth-in-Sentencing Guilty

Plea Form.6 Therefore, Terrero-Ovalles has waived his right to challenge errors that

may have occurred in the proceedings leading up to his plea.

       (8)     In order to prevail on a claim of ineffective assistance of counsel after

pleading guilty, Terrero-Ovalles must show that (i) trial counsel’s conduct fell below

an objective standard of reasonableness, and (ii) there is a reasonable probability

that, but for counsel’s alleged errors, he would not have pleaded guilty but would

have insisted on proceeding to trial.7              Terrero-Ovalles must make concrete

allegations of cause and actual prejudice to substantiate a claim of ineffective

assistance of counsel.8 Although not insurmountable, there is a strong presumption

that counsel’s representation was professionally reasonable.9




6
  Somerville v. State, 703 A.2d 629, 632 (Del. 1997).
7
  Miller, 840 A.2d at 1231.
8
  Stone v. State, 690 A.2d 924, 925 (Del. 1996).
9
  Id.


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      (9)    After careful consideration, we concur with the Superior Court’s

conclusion that Terrero-Ovalles failed to establish either cause or prejudice to

substantiate his claim that one or both of his attorneys provided ineffective assistance

of counsel. Terrero-Ovalles’ initial attorney effectively questioned the investigating

DEA agent at Terrero-Ovalles’ preliminary hearing. Prior to the final case review,

appointed counsel reviewed with Terrero-Ovalles the State’s evidence, which

included audio and visual recordings of Terrero-Ovalles selling drugs to a

confidential informant.     Terrero-Ovalles has not shown that either counsel’s

representation was professionally unreasonable, nor has he shown how he was

prejudiced by counsel’s alleged errors. Given the nature of the evidence against him,

the Court cannot conclude that, but for trial counsel’s alleged errors, there is a

reasonable probability that Terrero-Ovalles would have refused the State’s plea offer

and achieved a more favorable result at trial.

      NOW, THEREFORE, IT IS ORDERED that the judgment of the Superior

Court is AFFIRMED.

                                        BY THE COURT:



                                        /s/ Gary F. Traynor
                                        Justice




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