IN THE SUPERIOR COURT OF THE STATE OF DELAWARE

DANIEL TOLEM, )
)

Defendant-Below, )

Appellant )

)

v ) ID No. 1212000184

)

)

STATE OF DELAWARE, )
)

Plaintiff-Below, )

Appellee. )

Submitted: Septernber 5, 2018
Decided: November 7, 2018

M
Upon Appealfrom the Court of Common Pleas Ofthe State OfDelaware
in and for New Castle County,
AFFIRMED.
This 7th day of November, 2018, upon consideration of the parties’ briefs and
the record below, it appears to the Court that:

(1) On July 15, 2013, Appellant Daniel Tolem (“Tolern”) pleaded guilty to

two misdemeanors in the Court of Common Pleas: Theft-Misdemeanor and Placing

an Illegal Wager.l The State entered a nolle prosequi on two other charges2 The
Court of Common Pleas immediately sentenced Tolem, for each charge, to one year
of imprisonment suspended for one year of Level I probation. Those sentences ran
concurrently3 and Tolem Was fully discharged from probation for both on September
5, 2014.4 This appeal arises from his unsuccessful efforts in the Court of Common
Pleas to now take back his plea_four years after it Was entered and three years after
his sentence ended.
FACTUAL AND PRoCEDURAL BACKGRoUND

(2) When first addressing the court at his plea hearing, Tolem’s counsel
informed the Court of Common Pleas, “I Went over the guilty plea form With Mr.
Tolem, explained the trial rights that he’s giving up by entering this plea and I
believe he’s doing so knowingly, intelligently, and voluntarily.”5 The court then

addressed Tolem personally.

 

l Tr. of Plea Colloquy, State v. Dam'el Tolem, ID No. 1212000184, at 3 (Del. Com Pl. July
13, 2013) (hereinafter “Colloquy Tr.”).

2 Id.
3 Id. ar 9-10.

4 Probation Termination, State v. Daniel Tolem, ID No. 1212000184 (Del. Com. Pl. Sept.
5, 2014).

5 Colloquy Tr. at 3:12-16.

(3) During the plea colloquy, the court asked Tolem Whether he had read,
understood, and signed the guilty plea form, had answered all questions truthfully,
and then understood all constitutional rights he Was Waiving by agreeing to forego
trial and plead guilty to the two charges.6 Throughout the plea colloquy, Tolem
consistently told the court that he understood.7 The court also questioned Tolem’s
counsel as to Whether Tolem understood his trial rights and the plea process.8
Tolem’s counsel confirmed that Tolem did.9

(4) The court, during the colloquy, noted that Tolem “expressed through
[his] body language, and through the shakes of [his] head significant reluctance” to
entering the plea. The court then asked Tolem: “You’ve entered a guilty plea; I’m
giving you the opportunity now. Do you Wish to Withdraw that guilty plea or do you
Want me to accept it?”‘0 Tolem replied, “Yeah, I Want you to accept that.”ll Tolem

confirmed both before and after this exchange that he had committed the theft and

 

6 Ia'. at 4-7.
7 Id.
8 [a'. at 8 (“[Defense Counsel], are you confident that your client understands What’s going

on and is entering this plea Willfully?”).

9 Ia'. (“Yes, Your Honor. We did go back and forth several times but l explained to him that
he doesn’t have to enter this plea; he does have the right to go to trial and We can go to trial if he
Wishes to.”).

10 Id.

' ‘ Id.

illegal wager offenses. And the court, after personally questioning Tolem and his
counsel, accepted Tolem’s plea as intelligently, knowingly, and voluntarily
offered.12

(5) Presently, Tolem, a citizen of Haiti, is in the process of being deported
due to his immigration status and it appears, in part, his 2013 guilty pleas.13 He filed
a postconviction motion in the Court of Common Pleas seeking vacatur of his
convictions. That court, after a hearing and supplemental briefing, issued a written
opinion and order denying Tolem’s motion holding that because Tolem “is no longer
in custody or under the supervision of the State of Delaware, and is not subject to
future custody or supervision relating to the underlying offense, the Defendant lacks

standing to bring a motion under Rule 61 .”14 This is Tolem’s appeal of that ruling.

 

12 Id. at 8-9.

13 App.’s Op. Br., Ex. B. While neither this Court nor the lower court has received anything
but a copy of the Immigration Court’s Notice of Hearing in Removal Proceedings, id., both Courts
have assumed for the purposes of these State proceedings that Tolem’s 2013 convictions will have
a negative, if not dispositive, impact on his federal deportation proceedings See, e.g., Tr. of Oral
Argument, State v. Dam`el Tolem, ID No. 1212000184, at 4-9 (Del. Super. Ct. Apr. 25, 2018)
(hereinafter “Oral Arg. Tr.”).

14 State v. Tolem, 2017 WL 7052691, at *2 (Del. Com Pl. Sept. 1, 2017).

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STANDARD oF REvIEw

(6) This Court takes criminal appeals from the Court of Common Pleas.
Such appeals are “reviewed on the record,” not “tried de novo.”15 In that way, this
Court “functions in the same manner as the Supreme Court, in its position as an
intermediate court, when considering an appeal from the Court of Common Pleas.”16
The Court of Common Pleas’ denial of a motion to withdraw a guilty plea under
either that Court’s Criminal Rule 32 or Criminal Rule 61 is reviewable on appeal
only for abuse of discretion.17 “An abuse of discretion occurs when a court has

exceeded the bounds of reason in view of the circumstances or so ignored recognized

rules of law or practice to produce injustice.”18 And this Court must, as the Court of

 

15 DEL. CoDE ANN. tit. 11, § 5301(0) (2018).

16 Layne v. State, 2006 WL 3026236, at *l (Del. Super. Ct. Sept. 26,2006) (citing Dickens v.
State, 2003 WL 21982924, at *3 (Del. Super. Ct. July 11, 2003); See also Baker v. Connell, 488
A.2d 1303, 1309 (Del. 1985) (Superior Court’s function as intermediate appellate court is basically
the same as the Supreme Court).

17 Blackwell v. State, 736 A.2d 971, 972 (Del. 1999) (“A motion to withdraw a guilty plea is
addressed to the sound discretion of the trial court Generally, the denial of such a motion is
reviewable only for abuse of discretion.”). See also Schofleld v. State, 2012 WL 589274, at *1
(Del. 2012) (“A denial of a [Rule 32(d)] motion for withdrawal of a guilty plea is reviewed for an
abuse of discretion”); Collins v. State, 2014 WL 2609107, at *1 (Del. June 9, 2014) (“This Court
reviews . . . [a] denial of postconviction relief [under Rule 61] for abuse of discretion and questions
of law de novo. The Court must consider the procedural requirements of Rule 61 before addressing
any substantive issues.”).

18 Harper v. State, 970 A.2d 199, 201 (Del. 2009) (quoting Culp v. State, 766 A.2d 486, 489
(Del. 2001)).

Common Pleas was bound to, consider the procedural requirements of Criminal Rule
61 before addressing any substantive issues.19
DISCUSSIoN

(7) Here, Tolem argues that the Court of Common Pleas erred when it
denied his motion to withdraw his guilty pleas as procedurally barred under Court
of Common Pleas Criminal Rule 61.20 He says that his case overcomes Rule 61 ’s
procedural bars because (1) deportation is a collateral consequence sufficient to
permit relief even after the completion of the sentence and (2) it would be a
miscarriage of justice for the Court to allow his convictions to stand where he was
not provided with an interpreter and, in his view, his right, under Paclilla v.
Kentucky,21 to be advised of the collateral consequence of deportation was violated.22
The Court of Common Pleas did not abuse its discretion when it denied Tolem’s

postconviction motion withdraw his guilty pleas.

 

19 Younger v. Smre, 580 A.2d 552, 554 (Del. 1990).

20 App.’s Op. Br., at 6. At oral argument, Tolem admitted that his claim was no longer
cognizable under Rule 32 and that Rule 61 was the only available avenue for relief. Oral Arg. Tr.,
at 3_4.

21 559 U.S. 356 (2010).

22 App.’s Op. Br. at 3.

(8) “Delaware law provides that [a trial court] must first consider whether
the defendant has satisfied the procedural requirements of Rule 61 before
considering the merits of [a] postconviction motion.”23 Tolem filed his Motion to
Withdraw his Guilty Pleas citing Court of Common Pleas Criminal Rule 32. Rule
32(d) states:

If a motion for withdrawal of a plea of guilty or nolo
contendere is made before imposition or suspension of
sentence or disposition without entry of a judgment of
conviction, the Court may permit withdrawal of the plea
upon a showing by the defendant of any fair and just
reason. At any later iiine, a plea may be Set aside only by
motion under Rule 61 .24

(9) Tolem did not file his motion in the Court of Common Pleas until July
31, 2017. Because Tolem filed his Motion to Withdraw Guilty Pleas several years
after his sentence was imposed, his motion is controlled by the procedural
requirements of Rule 61. Criminal Rule 61 ’s standing bar is derived from the rule’s
subsection (a)(l).

(10) Tolem claimed below that had he been aware of the potential

immigration consequences when he entered his guilty pleas, he would not have

 

23 Paul v. Slal‘€, 2011 WL 3585607, at *l (Del. Aug. 15, 2011).
24 Ct. Com. Pl. Crim. R. 32(d) (emphasis added).

_7_

accepted the plea, contested the charges, and proceeded to trial.25 The court below
assumed that Tolem’s trial counsel did not advise him on the potential immigration
consequences of entering into a guilty plea.26 Despite the court’s finding regarding
potential immigration consequences, the Court of Common Pleas held that Tolem
lacked standing to attack his guilty plea under Rule 61 .27
Lack of Standing

(1 1) Court of Common Pleas Criminal Rule 61(a)(1) provides an avenue for
relief for “a person in custody or subject to future custody under a sentence of th[at]
Court seeking to set aside a judgment of conviction.”28 When Tolem filed his
motion, he had been discharged from custody and all supervision for nearly three
years. And there is no argument that Tolem is subject to any future custody as a
result of the two misdemeanors to which he pleaded guilty. lt was because Tolem
is no longer in custody nor subject to future custody, that the Court of Common Pleas

found that he did not satisfy the standing requirement of Rule 61(a)(1).29

 

25 Def.’s Motion to Withdraw Guilty Plea, State v. Daniel Tolem, ID No. 1212000184, at 2
(Del. Com. Pl. July 31, 2017) (hereinafter “Rule 61 Mot.”).

26 Tolem, 2017 WL 7052691, at *1.
27 Id. at *2.
28 Ct. Com. Pl. Crim. R. 61(a)(l).

29 Tolem, 2017 WL 7052691, at *2.

Tolem’s Miscarriage of Justice Claims

(12) Tolem argues that he should be able to overcome the Rule 61
procedural bars because it would be a miscarriage of justice to allow his conviction
to stand when an interpreter should have been appointed and his trial counsel did not
inform him of the deportation consequences Tolem’s seeks refuge in Common
Pleas Criminal Rule 61(i)(5)’s exception to the Rule 61 procedural bars. lt states:

The bars to relief in paragraphs ( 1 ), (2), and (3) of this subdivision shall

not apply to a claim that the Court lacked jurisdiction or to a colorable

claim that there was a miscarriage of justice because of a constitutional

violation that undermined the fundamental legality, reliability, integrity

or fairness of the proceedings leading to the judgment of conviction.30
Unfortunately for Tolem, the plain language of the (i)(5) exception demonstrates that
it applies only to those bars set forth in paragraphs (i)(l)_(3), i.e., the time bar, the
restriction on repetitive motions, and the procedural default bar. Rule (i)(5)’s
exception simply does not reach Rule 61(a)(1)’s standing bar.

(13) Undeterred, Tolem argues that his deportation is a collateral

consequence sufficient to overcome any of Rule 61 ’s procedural bars. But our courts

 

30 Ct. Com. Pl. Crim. R. 61(i)(5) (emphasis added). lt should be noted here that while in most
instances the various provisions of Court of Common Pleas Criminal Rule 61 and Superior Court
Criminal Rule 61 are identical, the wording of each’s (i)(5) exception differs. This Court’s (i)(5)
exception is narrower. See Super. Ct. Crim. R. 61(i)(5)(2018)(“Bars inapplicable -- The bars to
relief in paragraphs (1), (2), (3), and (4) of this subdivision shall not apply either to a claim that
the court lacked jurisdiction or to a claim that satisfies the pleading requirements of subparagraphs
(2)(i) or (2)(ii) of subdivision (d) of this rule”).

have repeatedly held that deportation is not a collateral consequence sufficient to
overcome those procedural bars.

(14) Tolem bases his argument on Padilla v. Kentacky.31 The United States
Supreme Court in Padilla held that the failure of an attorney to apprise his or her
client of potential deportation risks when entering into a plea constitutes ineffective
assistance of counsel in violation of the Sixth Amendment.32 Tolem asserts that
neither his trial counsel nor the Court informed him of potential deportation risks
when he entered his guilty plea; nor did the guilty plea form or plea colloquy contain
any information at that time regarding potential deportation risks.33 The Court of
Common Pleas adopted Tolem’s assertion.34 Tolem argues now that his deportation,
the above facts, and Padilla, are sufficient to establish that his deportation is a
collateral consequence sufficient to overcome Rule 61 procedural bars.

(15) But Tolem ignores Delaware law which has repeatedly and consistently

held, both pre-35 and post-Padilla, that deportation is not a collateral consequence

 

31 559 U.S. 356 (2010).

32 ld. at 366.

33 App.’s Op. Br. at 3.

34 Tolem, 2017 WL 7052691, at *1.

35 See State v. Christie, 655 A.2d 836, 839-40 (Del. Super. Ct. June 29,1999), aff’d, 1994

WL 734468 (Del. Dec. 29, 1994) (stating that “[t]he direct consequences of a plea . . . include the
trial and appeal rights being waived, the potential maximum sentence, any mandatory minimum

_10_

sufficient to overcome Rule 61 procedural bars.36 And once Rule 61(a)(1)’s standing
bar is recognized, any Delaware trial or appellate court is constrained to end its
review and ignore any substantive postconviction relief claims.37

(16) The Court of Common Pleas cannot be found here to have exceeded the
bounds of reason in view of the circumstances or so ignored recognized rules of law
or practice to produce injustice. To the contrary, that court applied Delaware’s well-
established rules and law when it rejected Tolem’s years-late postconviction
complaints. And so, this Court concludes that the Court of Common Pleas was well
within its discretion when it denied Tolem’s belated Motion to Withdraw his Guilty

Pleas.

 

sentences, possible defenses being waived and so forth.”); State v. Satherland-Cropper, 1996 WL
33347484, at *2 (Del. Super. Ct. Mar. 25, 1996), ajj”d, 687 A.2d 197 (Del. 1996) (noting that a
collateral consequence is “not something a defendant must be apprised of prior to entering a guilty
plea in order for that plea to be knowing and voluntary.”).

36 See Baliazar v. State, 2015 WL 257344, at *3 (Del. Jan. 20, 2015) (observing_when
addressing a request to apply the collateral consequence doctrine to a similar deportation claim_
that, “[t]his 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 standing to seek relief under Rule 61 .”);Paul
v. State, 2011 WL 3585607, at *1 (Del. Aug. 15, 2011) (noting that movant did not overcome the
standing bar because he could not “demonstrate specifically a right lost or disability or burden
imposed by reason of the instant conviction” despite his claimed risk of deportation).

37 Ayers v. Siate, 802 A.2d 278, 281 (Del. 2002); Maxion v. Siaie, 686 A.2d 148, 150 (Del.
1996). See also Harnilton v. Staie, 2004 WL 1097703 (Del. May 12, 2004) (citing Bailey v. State,
588 A.2d 1121, 1127 (Del. 1991) (trial court must apply Rule 61 ’s procedural bars before reaching
the merits of the claims)).

_11_

NOW THEREFORE, IT IS ORDERED that the Court of Common Pleas’
denial of the motion to withdraw guilty pleas is, therefore, AFFIRMED.

SO ORDERED this 7th day 0 o ber, 2018.

//,///:;;E§§if:;;::;£.:#:Q

Paul R. Wallace, Judge

 

Original to Prothonotary

cc: Gregory A. Morris, Esq.
Julie Mayer, Deputy Attorney General

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