      IN THE SUPERIOR COURT OF THE STATE OF DELAWARE

                   IN AND FOR NEW CASTLE COUNTY

STATE OF DELAWARE                    )
                                     )     I.D. No. 0810017618
                                     )              0905024913
      v.                             )
                                     )
ALEJANDRO J.                         )
RODRIGUEZ-ORTIZ                      )
                                     )
                  Defendant          )

                           Submitted: July 19, 2015
                          Decided: October 15, 2015

               On Defendant’s Motion for Postconviction Relief.
                                DENIED.

       On Defendant’s “Motion for Voluntary Dismissal” of his Motion for
                            Postconviction Relief.
                           DENIED AS MOOT.

      On Defense Counsel’s Motion to Withdraw as Counsel for Petitioner.
                               GRANTED.

                                  ORDER
Gregory E. Smith, Esquire, Deputy Attorney General, Department of Justice,
Wilmington, Delaware, Attorney for the State.

Brian J. Chapman, Esquire, The Law Office of Brian J. Chapman, Wilmington,
Delaware, Attorney for the Defendant.

Alejandro J. Rodriguez-Ortiz, James T. Vaughn Correctional Center, Smyrna,
Delaware.

COOCH, R.J.
      This 15th day of October, 2015, upon consideration of Defendant’s Motion
for Postconviction Relief, it appears to the Court that:

       1.     On January 20, 2009, Alejandro J. Rodriguez-Ortiz (“Defendant”)
              was indicted for Murder First Degree; Possession of a Firearm During
              the Commission of a Felony; Possession of a Deadly Weapon by a
              Person Prohibited; and Conspiracy First Degree (the “January
              Indictment”).1 These charges stem from a September 2008 homicide.
              On August 17, 2009, Defendant was again indicted for Murder First
              Degree; Possession of a Firearm During the Commission of a Felony;
              Possession of a Deadly Weapon by a Person Prohibited; and
              Conspiracy First Degree (the “August Indictment”). 2 The second
              Indictment is a result of a July 2008 homicide.

       2.     On March 3, 2010, Defendant pled guilty to Murder Second Degree
              and all other charges in the January Indictment were dropped. On that
              same day, Defendant pled guilty to Manslaughter and Possession of a
              Deadly Weapon During the Commission of a Felony stemming from
              the August Indictment. 3 Following his plea, Defendant was sentenced
              to 40 years at Level V, suspended after 15 years for Murder Second
              Degree; 25 years at Level V, suspended after 20 years and followed
              by probation for Manslaughter; and 5 years at Level V for Possession
              of a Firearm During the Commission of a Felony. The Defendant did
              not appeal his plea or sentence to the Delaware Supreme Court.

       3.     On October 23, 2013, Defendant filed this Motion for Postconviction
              Relief (“Rule 61 Motion”) and a Motion for Appointment of
              Counsel. 4 On October 29 Defendant’s Motion for Appointment of
              Counsel was granted and counsel was appointed (“Rule 61 Counsel”)
              to handle Defendant’s Rule 61 Motion.5

1
  I.D. No. 0810017618 Indictment, D.I. # 6.
2
  I.D. No. 0905024913 Indictment, D.I. # 3.
3
  Plea Colloquy Tr. at 12 – 17.
4
  I.D. No. 0810017618, D.I. # 86, 87; I.D. No. 0905024913, D.I. # 39, 40.
5
  I.D. No. 0810017618, D.I. # 88; I.D. No. 0905024913, D.I. # 41. After this Court ordered that
counsel be appointed to represent Defendant in his Rule 61 Motion, but before the Office of
Conflict Counsel appointed counsel, Defendant filed a “Motion for Voluntary Dismissal” of his
Rule 61 Motion. In that Motion, Defendant cited “the lack of evidence to support the current
grounds listed in the [Rule 61] Motion” as the reason for the dismissal. Defendant also claims he
was given ineffective assistance of counsel again in regards to his Rule 61 Motion, because an


                                               2
       4.     In his Rule 61 Motion, Defendant states two separate grounds for
              relief, each based on a claim of ineffective assistance of counsel.
              First, Defendant claims that trial counsel “fell asleep during crucial
              pretrial meetings and Court hearings due to an unknown external
              impediment.” 6 Second, Defendant asserts trial counsel told him that if
              he refused the State’s plea offer for the charges in the January
              Indictment, he would be “executed” for the charges against him in the
              August Indictment. 7 Defendant also stated that he “didn’t realize that
              counsel wasn’t allowed to influence [his] decision to take a plea or
              not.”8

       5.     Defendant’s Rule 61 Motion was filed on October 23, 2013. Under
              Superior Court Criminal Rule 61(i), a Motion for Postconviction
              Relief can be potentially procedurally barred for time limitations,
              repetitive motions, procedural defaults, and former adjudications. 9

       6.     Rule 61(i)(1) provides that a motion exceeds time limitations if it is
              filed more than one year after the conviction is finalized, or if the
              motion asserts a newly recognized, retroactively applied right more
              than one year after it is first recognized.10

       7.     This Court finds that Defendant’s Motion was not timely filed.
              Defendant was sentenced by this Court on July 30, 2010. Defendant
              did not appeal his sentence to the Delaware Supreme Court and it
              became final 30 days later. 11 However, even if Defendant’s Rule 61
              Motion is not barred by time limitations, the Court finds no merit in the
              allegations Defendant asserts. Rule 61 Counsel found in his
              investigation that “it is clear from a review of trial counsel’s extensive


attorney was not appointed to represent him. However, defense counsel was in fact subsequently
appointed and conducted an apparent thorough investigation of Defendant’s accusations. After
that investigation, counsel recommended denial of Defendant’s Rule 61 Motion, because of its
lack of merit. Therefore, the Court denies Defendant’s Motion for Voluntary Dismissal as moot.
6
  Def.’s Mot. for Postconviction Relief at 3.
7
  Id.
8
  Id.
9
  Super. Ct. Crim. R. 61(i)(1)-(4).
10
   Super. Ct. Crim. R. 61(i)(1).
11
   Super. Ct. Crim. R. 61(m) (“A judgment of conviction is final for the purpose of this rule as
follows: (1) If the defendant does not file a direct appeal, 30 days after the Superior Court
imposes sentence.”).


                                               3
             file . . . that the trial counsel wh[o] represented [Defendant] was
             extremely well prepared and competent in handling both matters.” 12

      8.     There is no indication on the record or from Defendant’s Rule 61
             counsel to support Defendant’s accusation that trial counsel “fell asleep
             during crucial pretrial meetings and court hearings.” Therefore, the
             Court finds that this claim for postconviction relief lacks merit.

      9.     The Court is equally unpersuaded that trial counsel told Defendant to
             take the State’s plea offer or he’d be executed and that he did not
             realize that counsel was not permitted his decision. During
             Defendant’s plea colloquy he stated, inter alia:

                    THE COURT: Have you freely and
                    voluntarily decided to plead guilty to the
                    three charges listed in the written plea
                    agreement?

                    THE DEFENDANT: Yes.

                    THE COURT: Have you been promised
                    anything that is not stated in your plea
                    agreement?

                    THE DEFENDANT: No.

                    THE COURT: Has your lawyer, the State,
                    or anyone threatened or forced you to enter
                    this plea?

                    THE DEFENDANT: No. 13

             In addition, Defendant’s Rule 61 counsel was unable to find any
             evidence to support this claim. Counsel stated: “[a]fter completing a
             comprehensive review of all the documents contained in the trial
             counsel’s file, and the transcript of the plea colloquy and sentencing,


12
   Memorandum In Support Of Mot. To Withdraw As Counsel For Petitioner [hereinafter
Memorandum to Withdraw] at 7.
13
   Plea Colloquy Tr. at 12.


                                            4
              [Rule 61] counsel finds no merit to this claim.” 14 Having conducted its
              own review of the record and transcripts of the plea colloquy and
              sentencing, this Court is also unable to find anything that supports this
              accusation.

       10.    Finally, this Court finds that withdraw of Defendant’s Rule 61 counsel
              is appropriate. Rule 61(e)(2) states that if appointed counsel finds a
              defendant’s claim for postconviction relief to be so lacking in merit that
              counsel cannot ethically advocate for it, and counsel does not know of
              any other substantial grounds for relief, counsel is permitted to move
              for removal. 15 Counsel’s motion to withdraw must explain the factual
              and legal reason for the opinion and give notice to the defendant so he
              may file a response within 30 days. 16

       11.    In counsel’s “Memorandum In Support Of Motion To Withdraw As
              Counsel For Petitioner” (“Memorandum to Withdraw”) counsel
              conducted a thorough recitation of the facts leading up to both
              Indictments. The Memorandum to Withdraw also discussed the
              procedural history of the cases and Defendant’s claims in his Rule 61
              Motion in depth. Counsel then stated that after a review of the trial
              counsel’s file and transcripts, neither of Defendant’s claims were
              meritorious and counsel was unaware of any other potentially
              meritorious claim that could be raised. Once Rule 61counsel filed this
              Memorandum to Withdraw, Defendant had 30 days to respond.
              Defendant chose not file a response with the Court.




14
   Memorandum to Withdraw at 8.
15
   Super. Ct. Crim. R. 61 (e)(2).
16
   Id.


                                           5
Therefore, Defendant’s Motion for Postconviction Relief is DENIED; Defendant’s
“Motion for Voluntary Dismissal” of his Motion for Postconviction Relief is
DENIED AS MOOT; Defense Counsel’s Motion to Withdraw as Counsel is
GRANTED.

      IT IS SO ORDERED.

                                                  ______________________
                                                    Richard R. Cooch, R.J.

cc:   Prothonotary

      Investigative Services




                                      6
