            IN THE SUPERIOR COURT OF THE STATE OF DELAWARE
                      IN AND FOR NEW CASTLE COUNTY




STATE OF DELAWARE,                            )
                                              )
                      Plaintiff,              )
                                              )
                                              )
       v.                                     )      Cr. ID. No.   1210010331
                                              )
                                              )
JORGE RIVERA,                                 )
                                              )
                      Defendant.              )


                                   Submitted: June 3, 2015
                                   Decided: July 29, 2015

        COMMISSIONER’S REPORT AND RECOMMENDATION THAT

            DEFENDANT’S MOTION FOR POSTCONVICTION RELIEF
                         SHOULD BE DENIED.

Christina Kontis, Esquire, Delaware Department of Justice, 820 N. French St. 7th Floor,
Criminal Division, Wilmington, Delaware, 19801, Attorney for the State.

Natalie S. Woloshin, Esquire, Attorney at Law, 3200 Concord Pike, P.O. Box 7328,
Wilmington, Delaware, 19803, Attorney for Defendant.




MANNING, Commissioner
           This 29th day of July, 2015, upon consideration of defendant Jorge Rivera’s

Motion for Postconviction Relief, the Court finds the following:

                              FACTS AND PROCEDURAL HISTORY

           On February 24, 2015, Rivera pled guilty to Assault Second Degree and

Possession of a Firearm During the Commission of a Felony. Rivera was sentenced

immediately to four years of unsuspended Level V time, followed by probation. Rivera

did not file an appeal to the Delaware Supreme Court. The offenses are alleged to have

occurred on January 14, 2012; however, Rivera was not arrested until February 4, 2014.

Due to a conflict of interest with first appointed defense counsel, Natalie Woloshin

(“Defense Counsel”) was appointed to represent Rivera on September 23, 2014. 1 The

facts underlying Rivera’s charges are unimportant to his Rule 61 claims and need not be

recited here.

                              DEFENDANT’S RULE 61 CLAIM

           Rivera timely filed his first pro se motion for postconviction relief with this Court

on March 19, 2015. Defense Counsel filed an Affidavit, with attachments, denying

Rivera’s claims, on April 21, 2015. Rivera filed a Response to Defense Counsel’s

Affidavit on May 20, 2015. The State elected not to file a response.

           Rivera’s claims for postconviction relief are as follows:

           1. Ineffective Counsel/Attorney Misconduct. I never received my police
           report or my Rule 61, and when I asked Mrs. Woloshin she responded by
           saying she couldn’t provide me with the information because it was
           sealed.

           2. Denial Right to Speedy Trial. The State postponed trial numerous
           times due to lack of physical evidence, witness testimony, and the state
           explained significant problems locating witnesses.


1
    D.I. # 75.


                                                1
        3. Ineffective Counsel/Attorney Misconduct. I continued to tell Mrs.
        Woloshin that I wanted to go to trial and I didn’t want a plea agreement
        but she coerced me to signing a plea by promising probation.

        4. Ineffective Counsel/Attorney Misconduct. My attorney knows I don’t
        speak English and she never provided an interpreter to translate our
        lawyer/client conversation, so she couldn’t properly represent me, if she
        could not understand me.

                                       LEGAL STANDARD

         To prevail on an ineffective assistance of counsel claim, a defendant must meet

the two-pronged Strickland test by showing that: (1) counsel performed at a level “below

an objective standard of reasonableness” and that, (2) the deficient performance

prejudiced the defense. 2 The first prong requires the defendant to show by a

preponderance of the evidence that defense counsel was not reasonably competent, while

the second prong requires the defendant to show that there is a reasonable probability

that, but for defense counsel’s unprofessional errors, the outcome of the proceedings

would have been different. 3

        When a court examines a claim of ineffective assistance of counsel, it may

address either prong first; where one prong is not met, the claim may be rejected without

contemplating the other prong. 4

        Mere allegations of ineffectiveness will not suffice; a defendant must make and

substantiate concrete allegations of actual prejudice. 5 An error by defense counsel, even

if professionally unreasonable, does not warrant setting aside the judgment of conviction

if the error had no effect on the judgment. 6


2
  Strickland v. Washington, 466 U.S. 668, 687-88, 694 (1984).
3
  Id.
4
  Id. at 697.
5
  Younger v. State, 580 A.2d 552, 556 (Del. 1990).
6
  Strickland, 466 U.S. at 691.


                                                    2
         Although not insurmountable, the Strickland standard is highly demanding and

leads to a strong presumption that defense counsel’s conduct fell within a wide range of

reasonable professional assistance. 7 Moreover, there is a strong presumption that defense

counsel’s conduct constituted sound trial strategy. 8 Finally, and most germane to the

present case, “[c]onclusory allegations are insufficient to establish a claim of ineffective

assistance of counsel. 9

                                             Ground One

         Defense Counsel responds that she did not provide Rivera with copies of his

police reports and Rule 16 for a number of reasons. First, Rivera does not speak or read

English and all of the documents are written in English. Second, there was a Protective

Order in place which prohibited Defense Counsel from disclosing certain information to

Rivera. Third, Defense Counsel was concerned that other inmates, who would be utilized

to read the documents to Rivera, could then attempt to use the information contained in

the reports against Rivera as a bargain tool in their own criminal cases. 10

         Moreover, Defense Counsel states that “[w]hile I did not send Mr. Rivera police

reports, I met with him on several occasions with the help of an interpreter and went

through the contents of the police reports.” 11 Attached to Defense Counsel’s Affidavit

are invoices for interpreter services. The invoices reflect that Defense Counsel met with

Rivera at least four times between November 2014 and February 2015, with a Spanish

interpreter present, at “Gander Hill” (the jail housing Rivera). The invoices also reflect



7
  Albury v. State, 551 A.2d 53, 59 (Del. 1988); Salih v. State, 2008 WL 4762323, at *1 (Del. Oct. 31, 2008).
8
  Strickland, 466 U.S. at 688-689.
9
  Younger, 580 A.2d at 555.
10
   Aff. of Def. Counsel at 2.
11
   Id.


                                                     3
that the same interpreter was present for the entry of the guilty plea and sentencing on

February 24, 2015.

         Defense Counsel’s decisions in this regard strike the Court and savvy, practical,

and ultimately, to Rivera’s benefit. Based on this record, Defense Counsel’s actions were

professionally reasonable and did not prejudice Rivera; this claim should be denied.

                                              Ground Two

         Rivera, presumably, is claiming that his right to a speedy trial was violated due to

the numerous delays leading up to the day the case was scheduled for trial. The Court

notes that Rivera was arrested on February 4, 2014 and his trial, ultimately, was

scheduled for February 24, 2015—slightly more than one year after his arrest. In her

Affidavit, Defense Counsel noted that the case had a “tortured history with respect to

scheduling” and that new counsel had to be appointed due to a conflict of interest that

arose during the pendency of the case. In any event, the proper forum for Rivera to have

raised this speedy trial claim was on direct appeal to the Delaware Supreme Court.

Rivera does not allege that Defense Counsel was responsible for the delay, as it is,

through her negligence or professional misconduct. Because Rivera did not raise this

issue on a direct appeal, it is procedurally barred under Rule 61(i)(3). 12 It is well settled

law that a reviewing court need not consider the merits of a Rule 61 motion if the motion

is procedurally barred. 13

         This claim is meritless, procedurally barred, and should be denied.



12
   Rule 61(i)(3) Procedural Default. Any ground for relief that was not asserted in the proceedings leading
to the judgment of conviction, as required by the rules of the court, is thereafter barred, unless the movant
shows (A) Cause for relief from the procedural default and (B) Prejudice from violation of the movant’s
rights.
13
   Younger, 580 A.2d at 554.


                                                      4
                                        Ground Three

           Rivera claims that Defense Counsel “coerced [him] [into] signing a plea by

promising probation.” Rivera’s claims in this instance are belied by the record. Both the

Guilty Plea Agreement and the Truth-In-Sentencing Form clearly indicated that the

charges Rivera plead guilty to carry a minimum mandatory sentence of three years

incarceration at Level V, up to a maximum 33 years at Level V. Defense Counsel also

stated that on the day of the plea all conversation took place with the assistance of an

interpreter and Rivera entered the guilty plea with the assistance of an interpreter. 14

Rivera has failed to present the Court with any reason to doubt Defense Counsel’s

statements in this regard or that his plea was not knowingly made.

           As to Rivera’s “coercion” claim, Defense Counsel conceded in her Affidavit that

her conversations with Rivera became “heated,” but denies that she ever coerced him.

Defense Counsel stated that she “gave him a very honest assessment of how I thought the

case would play out if he did not accept the plea,” but that Rivera “did not like a lot of

what I said to him because they weren’t things that he wanted to hear.” 15

           All of this makes perfect sense to the Court. A defense attorney who does not

objectively assess a case, advising the client accordingly, does a disservice to the client in

the end. It is the job of a criminal defense attorney to be frank and honest with his or her

client; it is not the job of a defense attorney to simply mollify the situation by telling the

client what he or she “wants” to hear during the course of the case. In this case, Defense

Counsel has been a member of the Delaware Bar since 1995 and a criminal defense

attorney since 2005—education, training and experience Rivera simply does not possess.


14
     Aff. of Def. Counsel at 3.
15
     Id. at 2.


                                               5
       Ultimately, there is nothing in the record to support Rivera bare assertions against

Defense Counsel, and they should be denied.

                                         Ground Four

       Rivera’s final claim is that Defense Counsel “never provided an interpetor [sic] to

translate our lawyer/client conversation, so she couldn’t properly represent me, if she

could not understand me.”

       Not only does Defense Counsel deny this allegation, but she has provided

documentation proving that an interpreter was present during their multiple conversation

at the jail and in court the day of the guilty plea. Based on the record before the Court,

Rivera’s claim is patently false.

       For the foregoing reasons, Rivera’s Motion should be DENIED.

       IT IS SO RECOMMENDED.



                                                     /s/ Bradley V. Manning
                                                     BRADLEY V. MANNING,
                                                     Commissioner


oc:    Prothonotary
cc:    Defendant




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