February 5, 2014
Date Submitted: February 3, 2014
Initially Mr. Baltazar filed a timely postconviction motion pursuant to Superior Court Criminal Rule 61 ("Rule 61"). Mr. Alexander Funk was appointed to represent him.
The Defendant sought relief from the collateral consequence of deportation as a result of guilty pleas to Unlawful Sexual Contact in the Third Degree and Endangering the Welfare of a Child (misdemeanor) entered on August 23, 2011.
The Defendant successfully completed his sentence and was discharged on August 7, 2012. Unfortunately for the Defendant, Homeland Security initiated deportation proceedings in 2013.
Alexander Funk, Esquire Casey Ewart, Esquire Page #2 February 5, 2014
Recognizing that Rule 61 would not be the appropriate procedural path to relief, Mr. Funk filed a Rule 35 Motion arguing the deportation was an "extra ordinary circumstance" on which withdrawal from the guilty pleas should be granted.
The State opposes the present Motion, even as amended to vacate only the endangering conviction.
Because the Defendant was fully advised of the potential impact of the convictions on his immigration status, the Court cannot find that the deportation matters now pending are an extraordinary circumstance. Therefore the Court hereby denies both the Rule 61 Motion and the Rule 35 Motion.
IT IS SO ORDERED.
Very truly yours,
T. Henley Graves Judge