IN THE SUPERIOR COURT OF THE STATE OF DELAWARE
IN AND FOR NEW CASTLE COUNTY
STATE OF DELAWARE
)
)
)
)
)
)
)
)
)
v.
NAZARIO I. MORLA,
DEFENDANT.
Case No. 0508014827
OPINION AND ORDER
On Defendant’s Motion for Postconviction Relief
Submitted: May 17, 2007
Decided: August 30, 2007
Martin B. O’Connor, Esquire, Deputy Attorney General, 820
North French Street, Wilmington, Delaware 19801, Attorney
for the State.
Nazario I. Morla, Pro Se
Toliver, Judge
This matter comes before the Court on the motion of the
Defendant, Nazario I. Morla, seeking postconviction relief
pursuant to Delaware Superior Court Criminal Rule 61.
Upon
reviewing the submissions of the parties, that which follows
is the Court’s resolution of the issues so presented.
STATEMENT OF FACTS AND NATURE OF THE PROCEEDINGS
On Tuesday, August 16, 2005, the Delaware State Police
received information from a past proven reliable confidential
source that later that day, a drug transaction was going to
take place near Newport, Delaware involving a Hispanic male
operating a sport utility vehicle identified as a green Ford
Explorer and another Hispanic male operating a sedan described
as a silver “BMW”.
Delaware
State
At approximately 12:50 p.m., members of
Police
Special
Investigations
Unit
set
up
surveillance in Newport near James and Waters Streets.
During
the course of that surveillance, they observed a series of
events culminating in the arrest of the Defendant, Nazario
Morla.
More specifically, they observed a BMW with Pennsylvania
license tags occupied by an individual that appeared to them
to be an Hispanic male.
That vehicle was met by a green Ford
Explorer
another
occupied
description.
by
individual
matching
that
The driver of the Explorer then entered the BMW.
After a brief conversation, he exited that vehicle and drove
away in the Explorer.
The driver of the Explorer, subsequently identified as
Co-Defendant Jose Espinosa, traveled down Old Airport Road and
entered a junkyard.
He emerged a few minutes later followed
by a red flatbed tow trunk driven by the Defendant Morla.
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The
two vehicles traveled to the James and Waters Street location
where
the
Defendant
Morla
handed
a
black
jacket
to
Co-
Defendant Espinosa who in turn gave it to the driver of the
BMW.
At that point, the police took the three individuals
into custody and searched their vehicles.
During the search
of the BMW, three bags of a powdered substance were found in
the black jacket.
The substance, determined to be cocaine and
weighing 275 grams, was seized.
Representatives
of
the
State
Police
and
the
Drug
Enforcement Agency interviewed Co-Defendant Espinosa at Troop
6 of the Delaware State Police. During the interview, Co-
Defendant
Espinosa
demonstrated
the
ability
to
speak
understand English, and also waived his “Miranda Rights”. 1
and
He
stated that when he was arrested, he was in the process of
1
Miranda v. Arizona, 384 U.S. 436 (1966).
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20
completing the sale of 250 grams of cocaine to the operator of
the silver BMW.
Co-Defendant Espinosa also stated that it was
the Defendant Morla who brought the jacket with the cocaine to
the meeting which he delivered to the BMW.
On September 6, 2005, Defendant Morla was indicted for
Trafficking
in
Cocaine
(over
100
grams),
Possession
with
Intent to Deliver, Maintaining a Vehicle to Keep Controlled
Substances and related offenses.
Morla
pled
guilty
to
the
On March 16, 2006, Defendant
lesser
Trafficking Cocaine (50-100 grams).
included
offense
of
As a result of his guilty
plea, Defendant Morla was sentenced to seven years at Level V
suspended after four years for Level III probation.
years at Level V are mandatory.
Defendant Morla did not
appeal the conviction or the sentence.
Page 4 of
The four
20
Defendant Morla filed the instant petition pro se on
March
13,
2007.
Up
to
that
point
in
represented by Eugene J. Maurer, Esquire.
time,
he
had
been
Mr. Maurer filed
his response to the Defendant’s Motion for Postconviction
Relief on April 27, 2007.
Deputy Attorney General Martin B.
O’Connor filed a response on behalf of the State on April 30,
2007.
In support of his petition, Defendant Morla makes three
arguments.
First, he claims that his plea was not knowingly and
voluntarily entered because he is not proficient in English
and an interpreter was not provided.
that
because
an
interpreter
was
not
Defendant Morla argues
present,
he
did
not
understand nature of the proceedings during his consultations
with Mr. Maurer.
He also contends that the plea offer was
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20
presented to him without enough time to fully analyze his
options,
nor
consequences.
was
there
a
thorough
explanation
of
the
Presumably, this argument is premised upon his
right to due process of law as guaranteed by the Fourteenth
Amendment to the United States Constitution. 2
Second, Defendant Morla contends that Mr. Maurer’s legal
assistance was ineffective thereby violating his right to
counsel as guaranteed by the Sixth Amendment to the United
States
Constitution. 3
In
support
of
this
contention,
Defendant Morla asserts that he has always maintained his
innocence and he was told by Mr. Maurer that the State did not
have any evidence of
his
guilt.
Defendant Morla further
claims that Mr. Maurer gave him incorrect information about
his immigration status and the consequences of entering a
2
U.S. Const. amend. XIV, § 1.
3
U.S. Const. amend. VI.
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20
guilty plea.
Nor, he claims, was he allowed to enter his plea
before a judge.
Lastly, Defendant Morla argues that he is innocent, and
was in the wrong place, at the wrong time.
He claims that he
is only a mechanic who was driving a tow truck in the process
of working on Co-Defendant Espinosa’s car and that all the
drugs were found with either Co-Defendant Espinosa or the
operator of the BMW.
In support of this argument he notes
that Co-Defendant Espinosa has now recanted testimony that
implicated Defendant Morla and admitted that the drugs were
his.
upon
While he fails once again to cite a specific statute
which
suggesting
he
relies,
the
that
under
these
Court
will
assume
circumstances,
his
that
he
is
conviction
constitutes a second violation of his right to due process of
law referenced above.
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20
Discussion
A predicate to addressing the merits of a
postconviction relief motion is an examination to determine
whether any procedural bars exist. 4
The procedural bars set
forth in Rule 61(i)(1)-(4) may only be lifted if there is a
mechanism to do so in the pertinent subsection of Rule 61. 5
If no such relief is available, the “catchall” provision of
Rule 61(i)(5) is available to provide relief from procedural
bars contained in Rule 61(i)(1-3).
To be specific, 61(i)(5) provides that the
4
Bailey v. State, 588 A.2d 1121, 27 (Del. 1991).
5
A motion for postconviction relief filed prior to July 1, 2005, may be
filed no more than three years after the judgment of conviction is final
or, if it asserts a retroactively applicable right that is newly
recognized after the judgment is final, no more than three years after
the right is first recognized by the Supreme Court of Delaware or by the
United States Supreme Court. Super. Ct. Crim. R. 61(i)(1). Grounds not
presented in prior postconviction proceedings or formerly adjudicated
claims are barred unless consideration of the claim is warranted in the
interest of justice. Super. Ct. Crim. R. 61(i)(2) & (4). Likewise, any
ground for relief not asserted in the proceedings leading to the judgment
of conviction are barred unless the movant shows cause for relief and
prejudice. Super. Ct. Crim. R. 61(i)(3).
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aforementioned bars may be raised where the defendant
establishes a colorable claim that there has been a
“miscarriage of justice”.
A colorable claim of “miscarriage
of justice” occurs when there is a “constitutional violation
that undermines the fundamental legality, reliability,
integrity or fairness of the proceedings leading to the
judgment of conviction.” 6
This exception to the procedural
bars is very narrow and is only applicable in very limited
circumstances. 7
The burden of proving that he has been
deprived of a “substantial constitutional right” is placed
upon the moving defendant. 8
In this case, it is readily apparent that the
procedural bars set forth in Rule 61(i)(1-4) will not
6
State v. Johnson, Del. Super., Cr. ID No. 83004982DI, Poppiti, J.
(July 20, 1983).
7
Younger v. State, 580 A.2d 552, 55 (Del. 1990).
8
Id.
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20
prevent
consideration of the merits of the Defendant’s claims.
To be specific, the petition was filed within the
applicable time limits set forth in Rule 61 and it is not a
formerly adjudicated claim.
would not therefore apply.
The bars of Rule 61(i)(1 & 4)
Moreover, since this is the
Defendant’s first post-conviction relief application, the
same conclusion must be reached relative to Rule 61(i)(2).
The only bar which might be said to be applicable here
would be that contained in Rule 61(i)(3) given the fact that
the Defendant did not raise his ineffective assistance of
counsel claims at trial or during that appeal.
However, by
their very nature, ineffective assistance of counsel claims
are not procedurally barred given the obviously important
and stated purpose of Rule 61(i)(5).
Put another way, a
claim of ineffective assistance of counsel is a
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20
constitutional violation that undermines the fundamental
legality, reliability, integrity or fairness of a proceeding
for purposes of that subsection of Rule 61(i). 9
The Court,
as a consequence, will proceed to examine the merits of the
claims raised by Defendant Morla as described above.
In this regard, Defendant Morla’s first argument in
support of his petition for postconviction relief via Rule
61 is not persuasive.
Mr. Maurer indicated that he met with Defendant Morla
on January 8, 2006 at the prison where Defendant Morla was
being held.
Mr. Maurer admits that at this meeting an
interpreter was not present, however, Mr. Maurer submits
that he does, “speak some Spanish and the Defendant does
9
See Mason v. State, 725 A.2d 442 (Del. 1999); and State v. McRae,
2002 Del. LEXIS 495, at *5. When a movant alleges a colorable claim
of ineffective assistance of counsel which is potentially procedurally
barred under Rule 61(i)(1), (2) or (3), it appears that such a claim
by definition, is likely to constitute a “constitutional violation
that undermines the fundamental legality, reliability, integrity or
fairness of the proceeding.” Super. Ct. Crim. R. 61(i)(5)
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20
speak some English [and] between the two of us, we were able
to communicate effectively.” 10
Mr. Maurer also met with
Defendant Morla the following day, January 9, 2006 for the
final case review.
During this meeting, Mr. Maurer and
Defendant Morla discussed the State’s plea offer.
Mr.
Maurer suspects, but could not recall, that an interpreter
was present that event. 11
In any event, Defendant Morla ultimately decided to
accept the state’s plea deal and plead guilty on March 16,
2006.
The record reflect that an interpreter was present to
assist in discussing the case as well as the plea offered by
the State.
In addition, the Truth-in-Sentencing “TIS” form
was completed in both English and Spanish.
Simply put, the Court must conclude that Defendant
10
See Response of Eugene J. Maurer, Jr., Esquire.
11
Id.
Page 12 of
20
Morla’s first argument is without merit.
The record clearly
supports the proposition that Defendant Morla did understand
English and that an interpreter remedied whatever deficiency
that may have existed regardless of what it might have been.
Defendant Morla does not state what he was confused about or
why he did not so inform the Court during the course of the
plea colloquy.
The facts will not support any other
conclusion.
Similarly situated is Defendant Morla’s claim that he
is innocent of the charges to which he pled guilty.
As
noted above, the Delaware State Police received information
that an illegal drug transaction about to take place along
with the description of the participants, their vehicles and
the location of the event.
based upon that information.
The police set surveillance
When the participants arrived,
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20
the police specifically observed
Defendant Morla hand the
jacket containing the cocaine to Co-Defendant Co-Defendant
Espinosa.
Furthermore, despite Defendant Morla’s assertion
to the contrary, Co-Defendant Co-Defendant Espinosa never
recanted his testimony prior to the entry of the plea by
Defendant Morla.
His claim of innocence is clearly not
supported by the record and therefore can not provide a
basis, constitutional or otherwise, for relief pursuant to
Rule 61.
Finally, in order to establish a Sixth Amendment
ineffective assistance of counsel claim, a defendant must
comply with a two prong test which is set forth in
Strickland v Washington. 12
Strickland requires a defendant
to first show that counsel’s representation fell below an
12
Strickland, 466 U.S. at 668.
Page 14 of
20
objective standard of reasonableness.
Assuming that the
first prong is satisfied, the defendant must show that
counsel’s actions were so prejudicial that there is a
reasonable probability that, but for counsel’s
unprofessional errors, the defendant would not have pled
guilty and would have insisted on going to trial. 13
The showing necessary to meet the second prong of the
Strickland test is not as exacting.
To be precise, the U.
S. Supreme Court has stated:
We believe that a defendant need not show that
counsel’s deficient conduct more likely than not
altered the outcome of the case… The result of a
proceeding can be rendered unreliable and hence
the proceeding itself unfair, even if the errors
of the counsel cannot be shown by a preponderance
of the evidence to have determined the outcome. 14
The second prong of the Strickland test has, therefore, a
lower standard of proof than the first.
13
State v. Thompson, 2003 WL 21244679 (Del. Super.)
14
Strickland, 466 U.S. at 693-94.
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20
The
movant
must
representation
fell
reasonableness
via
Additionally,
there
representation
was
demonstrate
overcome
by
the
below
a
an
that
objective
preponderance
is
a
strong
professionally
movant. 16
his
of
counsel’s
standard
evidence. 15
the
presumption
reasonable
Moreover,
if
of
that
that
either
the
must
be
prong
of
Strickland is not met, the Defendant’s claim fails. 17
It is also well established that the determination of a
postconviction
claim
should
not
involve
the
“distorting
effects of hindsight when viewing that representation,”.
reviewing
court
should
“reconstruct
the
circumstances
A
of
counsel’s challenged conduct,” and “evaluate the conduct from
15
State v. Wright, 653 A.2d 288 (Del. Super. 1994), aff’d 671 A.2d
1353 (Del. Supr. 1996).
16
Albury v. State, 551 A.2d 53, 59 (Del. Super. 1988).
17
State v. Collins, 2007 WL 2429373 (Del. Super.)
Page 16 of
20
counsel’s perspective at the time.” 18
ineffectiveness will not suffice.
Mere allegations of
Instead, a defendant must
make concrete allegations of ineffectiveness and substantiate
those allegations by a showing of actual prejudice or risk
summary dismissal. 19
It is readily apparent that Defendant Morla’s claim of
ineffective assistance of counsel is without support in the
record for several reasons.
First, Defendant Morla can not claim that his alleged
poor ability to speak English coupled with Mr. Maurer lack of
fluency
in
Amendment
Spanish
right
to
constitutes
counsel
a
violation
because
he
completed the plea colloquy in Spanish.
of
pled
his
Sixth
guilty
and
Second, contrary to
the his assertions, Mr. Maurer informed Defendant Morla that
18
Strickland, 466 U.S. at 689.
19
See Gattis v. State, 697 A.2d 1174, 78-79 (Del. 1997).
Page 17 of
20
he would be deported, that the State’s evidence against him
was
“overwhelming
and
that
the
plea
afforded
him
opportunity to cut his jail time at least in half”. 20
the
Third,
he had over two months to consider the plea deal offered by
the State.
Defendant
Morla’s
claim
of
ineffective
assistance
of
counsel is also defective because nowhere in his petition does
he set forth allegations upon which the Court could find that
he has satisfied either prong of the Strickland standard.
He
does not argue that Mr. Maurer’s representation fell below an
objective
standard
of
reasonableness
or
that
but
for
Mr.
Maurer’s poor representation, he would not have pled guilty
and
would
have
deficiencies,
20
insisted
this
claim
on
going
is
not
to
entitled
See Response of Eugene J. Maurer
Page 18 of
trial.
20
to
Given
any
these
further
consideration.
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20
CONCLUSION
For the reasons set forth above, the Court must conclude
that the Defendant has failed to establish the existence of
any grounds
that would entitle him to relief pursuant to
Superior Court Criminal Rule 61.
Consequently, his petition
for post-conviction relief, must be, and hereby is, denied.
IT IS SO ORDERED.
________________________
TOLIVER, JUDGE
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