Calvin L. Scott, Jr. Judge
On this 22nd Day of October and upon Defendant Fitzhuah Aiken's ("Defendant") motion for post-conviction relief and to withdraw his guilty plea, it appears to the Court that:
On January 13, 2012, a Sears Loss Prevention manager informed Officer Mauchin that Defendant, a Sears employee, and another employee were observed on video surveillance stealing recycled car batteries. When the loss prevention manager interviewed Defendant, he admitted to stealing the batteries and provided a written statement. On January 17, 2012, an arrest warrant was obtained for the Defendant and he spoke to Officer Mauchin on the phone. On January 19, 2012, Defendant agreed to turn himself in and he obtained a public defender, Raymond M. Radulski ("Attorney Radulski").
On February 1, 2012, Defendant and Attorney Radulski signed a Truth-in-Sentencing Form. The form contained the following question: "NON-CITIZENS: Are you aware that conviction of a criminal offense may result in deportation/removal, exclusion from the United States, or denial of naturalization?" Attorney Radulski marked "NA" in response to the question. The answer "Yes" was marked in response to the question "Have you read and understood all the information in this form?"
On February 16, 2012, Defendant entered a plea of guilty to Theft of more than $1500, a felony. During the plea colloquy, Defendant replied in the affirmative when the Court asked whether he reviewed the form with his attorney and whether the form was complete and accurate. Defendant was then sentenced to 2 years at Level 5 suspended for 1 year at Level 3 probation and restitution, fees and costs.
Defendant did not appeal his plea and, on May 20, 2013, he moved for the first time and through different counsel for post-conviction relief and the withdrawal of his plea based on the ineffective assistance of counsel. Based on Padilla v. Kentucky, 559 U.S. 365 (2010), Defendant argues that, because he is in the United States on a green card,  his attorney was required, but failed to, advise him that his guilty plea carried a risk of deportation.
The State has attached the Attorney Radulski's affidavit to support its assertion that Attorney Radulski was not under a duty to advise Defendant of the consequences related to his immigration status because he was not made aware of Defendant's status. The State also argues that Defendant cannot show that, but for counsel's failure to inform him of the risk of deportation, he would not have pled guilty.
In Attorney Radulski's affidavit, he stated that he "reviewed the Truth-in-Sentencing Guilty Plea form line-by-line with the defendant, including the caveat directed to 'non-citizens' which advises non-citizens of possibility of deportation/removal, exclusion from the United States or denial of naturalization which may result from a criminal conviction." He also stated that he had "no recollection of the defendant having advised [him] of his 'green card' status at the time [they] discussed the plea, at the time [they] reviewed the Guilty Plea Form, or at any time prior to sentencing."
Standard of Review
To determine whether to consider the merits of a motion for post-conviction relief, the Court must first determine whether a defendant has met the procedural requirements under Del. Super. Ct. Rule 61. While "[a] defendant who fails to raise an issue on direct appeal is generally barred from raising it in a postconviction motion, " "colorable ineffective assistance of counsel claims are not subject to the procedural bars contained in Rule 61(i)(1), (2), or (3)."
Granting a motion to withdraw a guilty plea is within the "sound discretion of the trial court." "After sentencing, a motion to withdraw a guilty plea constitutes a collateral attack against the conviction and is subject to the requirements of Rule 61, including its bars of procedural default."
Under the Strickland two-prong test, a defendant asserting a claim for ineffective assistance of counsel must show 1) "that counsel's representation fell below an objective standard of reasonableness, with reasonableness being judged under professional norms prevailing at the time counsel rendered assistance" and 2) "a reasonable probability that the deficiencies in counsel's representation caused the defendant actual prejudice."When considering the reasonableness prong, the Court affords counsel a "strong presumption ...