State v. Ferrer-Vasquez

• Court: Superior Court of Delaware
• Decided: September 7, 2022
• Docket: 1904016280
• Status: Published

Opinion

IN THE SUPERIOR COURT OF THE STATE OF DELAWARE

STATE OF DELAWARE ) ) V. ) I.D.: 1904016280 ) CARLOS FERRER-VASQUEZ, ) ) Defendant. )

ORDER And now, this 7th day of September, 2022, the Court makes the following

findings:

1. The Defendant pled guilty to Murder, 2nd degree, a firearms offense

and violation of the Protection from Abuse Order (“PFA”). He was represented by

counsel. On October 30, 2020, he was sentenced to life imprisonment on the

murder count, two years on the weapons offense and probation for criminal

contempt of the PFA. No appeal was filed.

2. On February 22, 2022, the Defendant filed a motion for

postconviction relief under Delaware Criminal Rule 61. In order to invoke the

Court’s review of a conviction under Rule 61, the motion for relief must be filed

within one year of the final order of conviction.1 Because the motion for relief

1 Del. Super. Ct. Crim. R. 61(i)(1). 1 under Rule 61 was filed more than one year after the date of sentence and no

appeal was filed, Defendant’s motion is time barred.

3. While this disposes of Defendant’s motion under Rule 61, the Court

notes that among Defendant’s claims is one that his attorney failed to advise him of

his right to take an appeal of his guilty plea and sentence. Notably absent from his

petition, however, is any specific grounds upon which to take an appeal had he

actually filed one.

4. Because his was a guilty plea, his available grounds for appeal are

limited.2 In reviewing the rest of Defendant’s Rule 61 motion, it appears that his

main complaint is that he received a sentence in excess of his expectations as a

result of his guilty plea. The Truth in Sentencing Guilty Plea form, however,

clearly explains that the potential sentence for a guilty plea to Murder 2nd degree

is 15 years to life imprisonment. There was no agreement by the State to “cap” its

recommendation as part of the plea agreement.3

5. The Court has reviewed the guilty plea colloquy and, consistent with

the plea agreement, the Defendant was specifically advised that he faced a

potential life sentence. Defendant’s trial counsel has supplemented the record with

2 Del. Super. Ct. Crim. R. 61(i). 3 The Court notes that the Defendant is bound by his representations in signing the Truth in Sentencing Guilty Plea form and during his plea colloquy. Moreover, even if a cap had been negotiated, the Court is not bound to impose it. See Somerville v. State, 703 A.2d 629 (Del. 1997). 2 his affidavit, attesting that he advised the Defendant that the guilty plea waived his

right to appeal.4 Other papers appended to counsel’s affidavit make it clear that

trial counsel tried, but failed, to negotiate a lesser charge or a sentencing cap in the

State’s recommendation. Counsel did note that the Murder 2nd degree guilty plea

took the Defendant out from under a mandatory life sentence upon conviction for

the charged offense of Murder 1st degree.

6. Defendant wound up with a life sentence for Murder 2nd degree as a

matter of judicial discretion and not as a mandated sentence for Murder 1 st degree.

Thus, his life sentence was discretionary and not mandatory. That is probably cold

comfort to him. But the fact that trial counsel’s efforts to mitigate Defendant’s

conduct or sentence did not persuade the Court is not ineffective assistance of

counsel.

7. Defendant’s motion under Rule 61 is time barred. The motion is

DENIED.

4 D.I. 41 ¶ 8 (Def. Couns. Aff.). 3 8. Defendant has also filed a Motion for Transcripts and a Motion for

Appointment of Counsel. Both of these motions are DENIED as moot.

IT IS SO ORDERED.

Charles E. Butler, Resident Judge