        IN THE SUPERIOR COURT OF THE STATE OF DELAWARE

                     IN AND FOR NEW CASTLE COUNTY


STATE OF DELAWARE                          )
                                           )
                                           )
              v.                           )      ID No. 1204000588
                                           )
ANTONIO BALTAZAR,                          )
                                           )
              Defendant.                   )
                                           )



                                      ORDER


       1.    Defendant entered a guilty plea to four counts of Robbery in

the First Degree and one count of Burglary in the Second Degree, and he

was sentenced in June, 2013 to 25 years at Level 5 followed by

probation.     A year and a half after he was sentenced Defendant

apparently had second thoughts and he now seeks to withdraw his guilty

plea. This is the court’s ruling on that application.

       2.    Motions to withdraw guilty pleas after sentencing must be

brought pursuant to Criminal Rule 61. 1 As in all other Rule 61 motions,

this court is required to determine whether it is procedurally barred

before reaching the merits. 2




1  Criminal Rule 32(d).
2  Teagle v. State, 755 A.2d 390, 2000 WL 949646, at *1 (Del. 2000) (TABLE); Stone v.
State, 690 A.2d 924, 925 (Del. 1996).
        3.      Defendant’s motion is procedurally barred.          Rule 61(i)(1)

provides:

                A motion for postconviction relief may not be
                filed more than one year after the judgment of
                conviction is final or, if it asserts a retroactively
                applicable right that is newly recognized after
                the judgment of conviction is final, more than
                one year after the right is first recognized by the
                Supreme Court of Delaware or by the United
                States Supreme Court. 3

Defendant does not satisfy the exception to Rule 61(i)(1) imbedded within

that rule because he does not allege the existence of a newly recognized

retroactive right. He must find any relief to the procedural bar, therefore,

in the catchall exception in Rule 61(i)(5).

        4.     The catchall provision in Rule 61(i)(5) excuses a procedural

default if the defendant’s claim “satisfies the pleading requirements of

subparagraphs (2)(i) or 2(ii) of subdivision of this rule.”        The pertinent

subparagraphs of subdivision 2 excuse a procedural default if the

defendant:

                (i) pleads with particularity that new     evidence
                exists that creates a strong inference     that the
                movant is actually innocent in fact of     the acts
                underlying the charges of which            he was
                convicted; or

                (ii) pleads with particularity a claim that a new
                rule of constitutional law, made retroactive to
                cases on collateral review by the United States
                Supreme Court or the Delaware Supreme Court,
                applies to the movant's case and renders the
                conviction or death sentence invalid.


3   Sup. Ct. Crim. R. 61(i)(1)

                                         2
As stated earlier, Defendant does not plead a new rule of constitutional

law which has been made retroactive, and therefore he cannot satisfy

subparagraph (ii).

      5.   Turning to subparagraph (i), Defendant has not pleaded any

new evidence that “creates a strong inference that [he] is actually

innocent.” His guilty plea effectively forecloses such a showing here. His

plea to Count 36 (Robbery in the First Degree) illustrates this. After the

charges in count 36 were summarized for Defendant, the court asked

him “How do you plead to this: guilty or not guilty?” whereupon

Defendant responded “Guilty.” The court then satisfied itself that the

defendant had in fact committed the offense:

            THE COURT: And is it true, sir, that on or
            about March the 26th of 2012 in this county you
            held up Khawaja Butt?

            THE DEFENDANT: Yes.

            THE COURT: And that you took money; is it Ms.
            or Mr. Butt?

            THE DEFENDANT: Miss.

            THE COURT: That you took property from Ms.
            Butt?

            THE DEFENDANT: Yes.

            THE COURT: And at this time you suggested to
            her by word or conduct that you had a gun with
            you?

            THE DEFENDANT: Yes.




                                    3
It is difficult to envision how Defendant could introduce evidence he is

actually innocent of the crime when he admitted to the court that he took

money from the victim while suggesting to the victim that he had a gun.

Putting aside the theoretical difficulty of showing such evidence under

these circumstances, the instant petition falls far short of the mark.

      6. The defendant’s motion does not address the procedural bars.

Rather the gist of his motion is that he is “non-English speaking” and

that his counsel failed to have an interpreter present during their

meetings.     The court notes in passing that the record contradicts his

contention.    Rather it demonstrates that the defendant understands

English.    An interpreter was present during defendant’s plea colloquy,

and defendant was told by the court that “if at any time you do not

understand my English, please don’t hesitate to turn to the interpreter

who is standing next to you.”      Not once during the colloquy did the

defendant confer with the interpreter. Defendant’s answers to the court’s

questions throughout the colloquy were appropriate and showed he

understood what was occurring during the proceedings. Indeed, when he

was asked “do you have any difficulty in hearing me or in understanding

what is happening in court today?” defendant responded “no.”

      7. Defendant’s contention that, because of a language barrier, he

was unable to communicate with his counsel is also belied by

representations made by the defendant in connection with his plea. One




                                     4
of the forms signed by the defendant required him to respond to the

following question:

               Are    you   satisfied   with   your    lawyer’s
               representation of you, and that your lawyer has
               fully advised you of your rights? 4

Defendant responded to this question “yes.” He admitted during the plea

colloquy that he had an interpreter available to him when he completed

this form and that he understood the form:

               THE COURT: Mr. Rivera [an alias of defendant]
               would you please take a look at the Truth-in-
               Sentencing form. Did Mr. Barber review this
               with you?

               THE DEFENDANT: Yes.

               THE COURT: Was there an interpreter present
               at the time he reviewed this with you?

               THE DEFENDANT: Yes.

               THE COURT: Did you have an opportunity to
               ask him any questions you might have about it?

               THE DEFENDANT: Yes.

               THE COURT: If you asked him any questions,
               did he answer them to your satisfaction?

               THE DEFENDANT: Yes.

               THE COURT: Did you sign this document?

               THE DEFENDANT: Yes.

               THE COURT: Did you sign it because you
               understand what it means?

               THE DEFENDANT: Yes.

4   Emphasis in original.

                                      5
        8. Defendant asks the court to appoint counsel for him. Rule 61

permits the court to appoint counsel for Rule 61 petitioners        in certain

limited circumstances.          In cases in which a defendant seeks post-

conviction relief after entry of a guilty plea, the rule provides that the

court “may appoint counsel for an indigent movant's first timely

postconviction motion and request for appointment of counsel if the

motion seeks to set aside a judgment of conviction that resulted from a

plea of guilty or nolo contendere only if the judge determines . . . .” 5 A

necessary predicate under the rule for appointment of counsel is that the

underlying motion for post-conviction relief must be timely. As discussed

earlier, the instant motion is untimely, and therefore the court will not

appoint counsel.

        WHEREFORE, Defendant’s motion for appointment of counsel is

DENIED and his motion to withdraw his guilty plea is DISMISSED

because it is procedurally barred.


Dated: February 27, 2015
                                                    John A. Parkins, Jr.
                                                   Superior Court Judge


oc: Prothonotary

cc: Antonio Baltazar, SBI 005, JTVCC, Smyrna, Delaware
    Joseph S. Grubb, Esquire, Department of Justice, Wilmington,
    Delaware


5   Sup. Ct. Crim. R. 61(e)(2) (emphasis added).

                                            6
