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Tolem v. State

Superior Court of Delaware

November 7, 2018

DANIEL TOLEM, Defendant-Below, Appellant
STATE OF DELAWARE, Plaintiff-Below, Appellee.

          Submitted: September 5, 2018

         Upon Appeal from the Court of Common Pleas of the State of Delaware in and for New Castle County, AFFIRMED.

          Gregory A. Morris, Esq. Julie Mayer, Deputy Attorney General



         This 7th day of November, 2018, upon consideration of the parties' briefs and the record below, it appears to the Court that:

         (1) On July 15, 2013, Appellant Daniel Tolem ("Tolem") pleaded guilty to two misdemeanors in the Court of Common Pleas: Theft-Misdemeanor and Placing an Illegal Wager.[1] The State entered a nolle prosequi on two other charges.[2] The Court of Common Pleas immediately sentenced Tolem, for each charge, to one year of imprisonment suspended for one year of Level I probation. Those sentences ran concurrently[3] and Tolem was fully discharged from probation for both on September 5, 2014.[4] This appeal arises from his unsuccessful efforts in the Court of Common Pleas to now take back his plea-four years after it was entered and three years after his sentence ended.

         Factual And Procedural Background

         (2) When first addressing the court at his plea hearing, Tolem's counsel informed the Court of Common Pleas, "I went over the guilty plea form with Mr. Tolem, explained the trial rights that he's giving up by entering this plea and I believe he's doing so knowingly, intelligently, and voluntarily."[5] The court then addressed Tolem personally.

         (3) During the plea colloquy, the court asked Tolem whether he had read, understood, and signed the guilty plea form, had answered all questions truthfully, and then understood all constitutional rights he was waiving by agreeing to forego trial and plead guilty to the two charges.[6] Throughout the plea colloquy, Tolem consistently told the court that he understood.[7] The court also questioned Tolem's counsel as to whether Tolem understood his trial rights and the plea process.[8]Tolem's counsel confirmed that Tolem did.[9]

         (4) The court, during the colloquy, noted that Tolem "expressed through [his] body language, and through the shakes of [his] head significant reluctance" to entering the plea. The court then asked Tolem: "You've entered a guilty plea; I'm giving you the opportunity now. Do you wish to withdraw that guilty plea or do you want me to accept it?"[10] Tolem replied, "Yeah, I want you to accept that."[11] Tolem confirmed both before and after this exchange that he had committed the theft and illegal wager offenses. And the court, after personally questioning Tolem and his counsel, accepted Tolem's plea as intelligently, knowingly, and voluntarily offered.[12]

         (5) Presently, Tolem, a citizen of Haiti, is in the process of being deported due to his immigration status and it appears, in part, his 2013 guilty pleas.[13] He filed a postconviction motion in the Court of Common Pleas seeking vacatur of his convictions. That court, after a hearing and supplemental briefing, issued a written opinion and order denying Tolem's motion holding that because Tolem "is no longer in custody or under the supervision of the State of Delaware, and is not subject to future custody or supervision relating to the underlying offense, the Defendant lacks standing to bring a motion under Rule 61 ."[14] This is Tolem's appeal of that ruling.

         Standard of Review

         (6) This Court takes criminal appeals from the Court of Common Pleas. Such appeals are "reviewed on the record," not "tried de novo."[15] In that way, this Court "functions in the same manner as the Supreme Court, in its position as an intermediate court, when considering an appeal from the Court of Common Pleas."[16]The Court of Common Pleas' denial of a motion to withdraw a guilty plea under either that Court's Criminal Rule 32 or Criminal Rule 61 is reviewable on appeal only for abuse of discretion.[17] "An abuse of discretion occurs when a court has exceeded the bounds of reason in view of the circumstances or so ignored recognized rules of law or practice to produce injustice."[18] And this Court must, as the Court of Common Pleas was bound to, consider the procedural requirements of Criminal Rule 61 before addressing any substantive issues.[19]


         (7) Here, Tolem argues that the Court of Common Pleas erred when it denied his motion to withdraw his guilty pleas as procedurally barred under Court of Common Pleas Criminal Rule 6l.[20] He says that his case overcomes Rule 61 's procedural bars because (1) deportation is a collateral consequence sufficient to permit relief even after the completion of the sentence and (2) it would be a miscarriage of justice for the Court to allow his convictions to stand where he was not provided with an interpreter and, in his view, his right, under Padilla v. Kentucky, [21] to be advised of the collateral consequence of deportation was violated.[22]The Court of Common Pleas did not abuse its discretion when it denied Tolem's postconviction motion withdraw his guilty pleas.

          (8) "Delaware law provides that [a trial court] must first consider whether the defendant has satisfied the procedural requirements of Rule 61 before considering the merits of [a] postconviction motion."[23] Tolem filed his Motion to Withdraw his Guilty Pleas citing Court of Common Pleas Criminal Rule 32. Rule 32(d) states:

If a motion for withdrawal of a plea of guilty or nolo contendere is made before imposition or suspension of sentence or disposition without entry of a judgment of conviction, the Court may permit withdrawal of the plea upon a showing by the defendant of any fair and just reason. At any later time, a plea may be set aside only by motion under Rule 61.[24]

         (9) Tolem did not file his motion in the Court of Common Pleas until July 31, 2017. Because Tolem filed his Motion to Withdraw Guilty Pleas several years after his sentence was imposed, his motion is controlled by the procedural requirements of Rule 61. Criminal Rule 61 's standing bar is derived from the rule's subsection (a)(1).

         (10) Tolem claimed below that had he been aware of the potential immigration consequences when he entered his guilty pleas, he would not have accepted the plea, contested the charges, and proceeded to trial.[25] The court below assumed that Tolem's trial counsel did not advise him on the potential immigration consequences of entering into a guilty plea.[26] Despite the court's finding regarding potential immigration consequences, the Court of Common Pleas held that Tolem lacked standing to attack his guilty plea under Rule 61.[27]

         Lack of Standing

         (11) Court of Common Pleas Criminal Rule 61 (a)(1) provides an avenue for relief for "a person in custody or subject to future custody under a sentence of th[at] Court seeking to set aside a judgment of conviction."[28] When Tolem filed his motion, he had been discharged from custody and all supervision for nearly three years. And there is no argument that Tolem is subject to any future custody as a result of the two misdemeanors to which he pleaded guilty. It was because Tolem is no longer in custody nor subject ...

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