ORDER

Peggy L. Ableman, Judge

This 29th day of April, 2003, upon consideration of the defendant's Motion for Postconviction Relief pursuant to Superior Court Criminal Procedure Rule 61, it appears to this Court that:

1. On May 13, 1991, the movant, Jesus Davila, Jr. ("Defendant"), was indicted by a Grand Jury and charged with Possession With Intent to Deliver a Narcotic Schedule II Controlled Substance in violation of 16 Del. C. § 4751 and Resisting Arrest in violation of 11 Del. C. § 1257. Defendant entered into a plea agreement on July 15, 1991, whereby, in exchange for the charge of Resisting Arrest against him being nolle prossed by the State, Defendant plead guilty to the lesser included offense of Possession of a Narcotic Schedule II Controlled Substance. The Court sentenced Defendant to one year incarceration at Level V, suspended for time served for 12 months at Level II probation. Defendant was also ordered to pay: 1) the costs of prosecution; 2) a fine of $200.00, $100.00 of which was suspended; 3) an eighteen percent surcharge for the Victim Compensation Fund; and 4) a fifteen percent surcharge for the Drug Rehabilitation Treatment and Education Fund. Pursuant to 21 Del. C. § 4177H(a), Defendant's motor vehicle privileges were revoked for two years. Because Defendant had left school after the tenth grade, the Court ordered that he pursue his G.E.D. during the term of his probationary period. Additionally, Defendant was to submit to substance abuse evaluations and follow any counseling, testing or treatment made by his probation officer.

2. A capias was issued for the Defendant on November 20, 1991 for violation of his probation. Defendant's violations included failure: 1) to attend several scheduled office visits with his probation officer; 2) to report a change of residence; 3) to pay court costs and fines; and 4) to submit to scheduled substance abuse evaluations. On February 3, 1993, Defendant was adjudged guilty of violation of probation and sentenced to one year incarceration at Level V with fourteen days credit for time served, suspended after nine months for three months as Level IV. All of the other terms and conditions of his original probation were reimposed.

3. On March 23, 1993, Defendant filed a Motion for Reduction/Modification of Sentence. Upon consideration of Defendant's history, the presentence report, and the motion, this Court denied Defendant's request for relief because the Court was satisfied that the sentence entered was appropriate and that a reduction or modification of the sentence was not warranted.

4. Defendant served the full term of the sentence imposed by this Court pursuant to his plea agreement and subsequent violation of probation. On March 21, 1996, the United States District Court for the Southern District of Alabama sentenced Defendant to 235 months incarceration. This Court was not provided with any information from the Defendant explaining the nature of the charges against him or his conviction resulting in his federal term of incarceration. Presently, Defendant is serving this sentence at the Allenwood Federal Correctional Institution in White Deer, Pennsylvania.

5. Defendant has filed this pro se motion for postconviction relief on March 31, 2003, wherein he seeks to set aside a judgment of criminal conviction based on violations of his constitutional rights under the United States Constitution and the Delaware Constitution. Defendant sets forth the following grounds for relief: 1) denial of counsel; and 2) no actual conviction because he never appeared before a judge to formally enter a plea.

6. Defendant has filed this motion more than ten years after his conviction became final and after having served his full term of incarceration. Pursuant to Rule 61(a)(1), the Court need not even consider Defendant's motion because he is neither a "person in custody" nor "subject to future custody" under a sentence of this Court. Even though Defendant lacks standing to bring the instant motion, the Court considers his claims of fundamental constitutional violations to be serious allegations that necessitate further investigation, review and resolution.

7. Under Delaware law, when considering a motion for postconviction relief, this Court must first determine whether the defendant has met the procedural requirements of Superior Court Criminal Rule 61(i) before it may consider the merits of defendant's postconviction relief claim. To protect the integrity of the procedural rules, the Court should not consider the merits of a postconviction claim where a procedural bar exists.

8. Upon initial review of Defendant's motion for postconviction relief, the Court finds that Defendant has failed to successfully overcome the procedural hurdles imposed by Rule 61. First, because this postconviction motion was filed ten years after the judgment of conviction became final, he is procedurally barred from relief under Rule 61(i)(1). The time bar of Super.Ct.Crim.R. 61(i)(1) provides:

A motion for postconviction relief may not be filed 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 of conviction is final, more than three years after the right is first recognized by the Supreme Court of Delaware or by the United States Supreme Court.

Since the instant motion was filed more than three years after his conviction became final and Defendant has not asserted a new retroactive rule under any circumstance, his motion is procedurally barred under Rule 61(i)(1).

9. The Rule 61 time bar is not an absolute prohibition to post-conviction relief petitions filed three years after conviction. Rule 61(i)(5) may potentially overcome the procedural bars of Rule 61. Rule 61(i)(5) "[i]s a general default provision, and permits a petitioner to seek relief if he or she was otherwise procedurally barred under Rules 61(i)(1)-(3)." Rule 61(i)(5) provides:

The bars to relief in paragraphs (1), (2), and (3) of this subdivision shall not apply to a claim that the court lacked jurisdiction or to a colorable claim that there was a miscarriage of justice because of a constitutional violation that undermined the fundamental legality, reliability, integrity or fairness of the proceedings leading to the judgment of conviction.

The "miscarriage of justice" or "fundamental fairness" exception contained in Rule 61(i)(5) is "[a] narrow one and has been applied only in limited circumstances, such as when the right relied upon has been recognized for the first time after a direct appeal." This exception may also apply to a claim that there has been a mistaken waiver of fundamental constitutional rights, such as a mistaken waiver of rights to trial, counsel, confrontation, the opportunity to present evidence, protection from self-incrimination and appeal. Accordingly, when a petitioner puts forth a colorable claim of mistaken waiver of important constitutional rights, Rule 61(i)(5) is available to him.

10. Since the Defendant is procedurally barred under Rule 61(i)(1), his only alternative means of relief is to proceed under Rule 61(i)(5). As such, "[i]n a postconviction proceeding, the petitioner has the burden of proof and must show that he has been deprived of a substantial constitutional right before he is entitled to any relief." In other words, `[t]he petitioner bears the burden of establishing a `colorable claim' of injustice. (citation omitted). While `colorable claim' does not necessarily require a conclusive showing of trial error, mere `speculation' that a different result might have [sic] obtained certainly does not satisfy the requirement." Defendant has made no claim that the court lacked jurisdiction. He therefore has the burden of presenting a colorable claim that there was a miscarriage of justice because of a constitutional violation that undermined the fundamental legality, reliability, integrity or fairness of the proceedings leading to the judgment of conviction.

If a movant presents a genuine "colorable claim," it will be sufficient to avoid dismissal of the claim and will require the Court to examine the evidentiary issues. Once a movant makes a showing that he is entitled to relief, thereby avoiding summary dismissal of his motion, an evidentiary hearing is not necessarily required. The Court may instead elect to examine the evidentiary issues presented in the submissions of the party and in the record without a hearing. Also, whether the movant has presented a "colorable claim" may be determined on the basis of the postconviction motion itself, prior to any responses being filed. Finally, the question of whether a movant has presented a "colorable claim" is a question of law that is reviewed by the Delaware Supreme Court de novo.

11. Turning to the substantive claims of Defendant's motion, Defendant states that his Sixth Amendment right to counsel and his Fifth Amendment right to a jury trial were both violated. Specifically, he alleges that his Sixth Amendment right was abridged by not having an attorney present to assist him with his change of plea and during his plea negotiations. Similarly, he claims that his Fifth Amendment right to a jury trial was denied because he was not apprised of this right nor did he make a knowing, voluntary, and intelligent waiver of this right.

Upon examining the record, the Court finds that Defendant's claims are not only lacking in both substance and merit, but are simply not true. According to the Defendant, on the day of his plea and sentencing hearing, the following scenario transpired:

While waiting in the hall outside the courtroom, on or about July 15, 1991, petitioner was approached by a court official. Unfortunately, petitioner is unaware of the identity or capacity of the individual who approached him. But presumed, as he was knowledgeable of petitioner's identity, that he was in fact a court official.

The sum of the conversation, to succinctly summarize; was that "do you want to go home today?" Petitioner responded in the affirmative that he would like to be able to resolve the pending charge to the satisfaction of all interested parties, and be able to avoid a term of incarceration.

In continuance of this line of conversation, the individual replied that "all you have to do is sign this form and you can go." Which did not even entail petitioner entering the courtroom and go in front of the judge; but "just sign." And, in petitioner's inexperienced layperson legal understanding, would be "all" he had to do. Basically, petitioner had no knowledge that the court must directly address a defendant to assure that he fully understands the consequences and ramifications of a Plea of Guilty. To wit, is the Plea made knowingly and voluntarily?

Additionally, the conversation as such, was a plea negotiation and petitioner should have had the Constitutionally Mandated counsel present to assist him in those negotiations. This way it would have been assured that petitioner understood the full and complete prejudice he would suffer in the future pursuant to the Guilty Plea.

The prejudice of the denial of counsel during this critical "stage" was then compounded by petitioner not appearing before the State Court. Whereby the trial judge did not directly address the defendant and question him as to the knowinglyness [sic] and voluntariness [sic] of petitioner's guilty plea. Which, had petitioner been afforded the Constitutionally Mandated assistance of counsel; would not have been overlooked.

In an attempt to prevail over the procedural time bar and invoke the "fundamental fairness" exception, Defendant alleges in his motion that he not only was denied representation of counsel, but also that he never appeared before this Court in any matter relating to a plea agreement or plea proceedings. The Court has reviewed the transcript of the plea and sentencing hearing, as well as the Truth In Sentencing Guilty Plea Form, and finds that Defendant's contentions directly contradict the record in this case.

In fact, from the inception of the criminal charges brought against him, Defendant was represented by counsel provided by the Assistant Public Defender's Office. On July 15, 1991, Defendant appeared before this Court, accompanied by his attorney, to enter his plea. The plea proceedings were initiated by Defendant's counsel explaining to the Court that Defendant had agreed to accept the State's offer and was pleading to the charge of Possession of Cocaine, a lesser included offense of Possession With Intent to Deliver. Counsel further explained to the Court that Defendant knew that in exchange for entering the plea, the other charge of Resisting Arrest would be nolle prossed. Defendant knew about the evidence that could have been admitted against him had he elected to go to trial. Moreover, according to statements to the Court made by his counsel, Defendant also was aware that he would not be able to have a driver's license for two years, that he would be forfeiting the forty dollars seized at the time of his arrest, and that he would be subject to a period of probation, probably to include some form of alcohol and drug abuse counseling.

When asked the level of his education, the Defendant responded that he had a tenth grade education and that he knew how to read and write. Defendant's counsel stated that she had assisted the Defendant in completing the Guilty Plea Form as it was her handwriting on the form.

Next, the Court initiated the plea colloquy with the Defendant. Addressing the Defendant, the Court began:

THE COURT: Have you ever been a patient in a mental hospital?

THE DEFENDANT: No.

THE COURT: Are you under the influence today of alcohol or drugs?

THE DEFENDANT: No, I'm not.

THE COURT: Have you freely and voluntarily decided to plead guilty to the charge of Possession of Cocaine as set forth in the Plea Agreement which I'm holding?

THE DEFENDANT: Yes, I have.

THE COURT: And I see a signature, Jesus Davila, Jr. Is that your signature?

THE DEFENDANT: Yes, sir . . .

THE COURT: Do you understand all the contents of the plea,

Mr. Davila?

THE DEFENDANT: Yes, sir.

THE COURT: And I see a signature, Jesus Davila, on the back of the Guilty Plea form. That's also your signature?

THE DEFENDANT: Yes, sir.

THE COURT: Did you understand all the questions that are on this form and as read to you by Ms. McNeice?

THE DEFENDANT: Yes, I have.

THE COURT: Did you understand all the questions truthfully?

THE DEFENDANT: Yes.

THE COURT: Do you understand there won't be a trial? Did Ms. McNeice read for you the trial rights contained in the middle of this page?

THE DEFENDANT: Yes, she has.

THE COURT: Did you understand all those trial rights?

THE DEFENDANT: Yes, I do.

THE COURT: And you understand importantly by pleading guilty, you're waiving those trial rights?

THE DEFENDANT: Yes.

THE COURT: Do you understand that the Court can impose one year of incarceration for this offense?

THE DEFENDANT: Yes, sir.

THE COURT: Has anyone promised you what your sentence will be?

THE DEFENDANT: No, sir . . .

THE COURT: Are you satisfied with Ms. McNeice and her representation of you in connection with this matter?

THE DEFENDANT: Yes, sir.

THE COURT: Is anyone forcing you or coercing you into this plea?

THE DEFENDANT: No, sir.

THE COURT: Are you doing so of your own free will?

THE DEFENDANT: Yes, sir . . .

THE COURT: Are you entering your plea knowingly, intelligently, and voluntarily?

THE DEFENDANT: Yes, sir.

THE COURT: Do you have any questions?

THE DEFENDANT: No. sir.

12. Contrary to Defendant's contentions, and as evidenced by the record, Defendant was advised and represented by counsel regarding his plea agreement and plea negotiations. Further, Defendant voluntarily, knowingly and intelligently, entered his plea of guilty to a lesser included offense, before a judge of this Court. To allege that he was approached in the hall of the courthouse by an "unknown court official" and coerced into signing a plea agreement, is a total fabrication apparently conceived by Defendant for the purpose of obtaining some benefit in connection with his federal charges. There was no denial or mistaken waiver of Defendant's fundamental constitutional rights. Accordingly, since Defendant failed to establish a violation of his Fifth and Sixth Amendment rights, he has also failed to authenticate a claim that there was a "miscarriage of justice" because of a constitutional violation pursuant to Rule 61(i)(5).

Ten years ago, the State and this Court showed leniency towards the Defendant, who at the age of twenty-two, had become involved with cocaine. By recommending probation, participation in the Aftercare Drug Rehabilitation Program, and completion of his G.E.D., the Court had hoped to provide Defendant with an opportunity to improve his life. Instead, Defendant now attempts to take advantage of the same judicial system that offered him the chance to make a fresh start by claiming serious violations of his constitutional rights based on a false account of the circumstances surrounding his guilty plea. Allegations of a denial of one's fundamental constitutional rights are grave accusations not to be taken lightly. Defendant's attempt to dupe this Court into believing he was unjustly convicted has wasted the Court's time and resources in responding to his motion.

13. In conclusion, notwithstanding the fact that Defendant lacked the proper standing to file this instant motion, the motion was filed more than three years after the judgment of conviction was finalized and Defendant has failed to demonstrate the existence of a constitutional violation resulting in a "miscarriage of justice" or undermining the "fundamental fairness" of the proceedings. Thus, the motion must be denied on procedural and substantive grounds.

For all the foregoing reasons, Defendant's Motion for Postconviction Relief Pursuant to Superior Court Rule 61 is procedurally barred under 61(i)(1) and 61(i)(5). Accordingly, the Motion for Postconviction Relief Pursuant to Superior Court Criminal Rule 61 is hereby DENIED.

IT IS SO ORDERED.