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