IN THE SUPREME COURT OF THE STATE OF DELAWARE
OSCAR TERRERO-OVALLES, § § No. 91, 2019 Defendant Below– § Appellant, § § v. § Court Below–Superior Court § of the State of Delaware STATE OF DELAWARE, § § Cr. ID 1612003435 (N) Plaintiff Below– § Appellee. §
Submitted: April 18, 2019 Decided: June 3, 2019
Before STRINE, Chief Justice; SEITZ and TRAYNOR, Justices.
ORDER
After careful consideration of the appellant’s opening brief, the State’s motion
to affirm, and the record on appeal, it appears to the Court that:
(1) The appellant, Oscar Terrero-Ovalles, appeals from the Superior
Court’s order denying his first motion for postconviction relief. The State has filed
a motion to affirm the Superior Court’s judgment on the ground that it is manifest
on the face of Terrero-Ovalles’ opening brief that his appeal is without merit. We
agree and affirm.
(2) In May 2017, a Superior Court grand jury indicted Terrero-Ovalles for
five counts of drug dealing, five counts of aggravated possession, and one count of
possession of drug paraphernalia. The charges stemmed from a drug investigation conducted by the Drug Enforcement Administration (“DEA”) with assistance from
a confidential informant. At Terrero-Ovalles’ preliminary hearing, defense counsel
questioned the investigating DEA agent about why Terrero-Ovalles came to the
DEA’s attention and how the DEA conducted its subsequent probe into Terrero-
Ovalles’ activities. In the Superior Court, counsel moved to withdraw and appointed
counsel entered his appearance. On November 13, 2017, Terrero-Ovalles pleaded
guilty to two counts of drug dealing. In exchange for his plea, the State entered a
nolle prosequi on the remaining charges. The Superior Court immediately sentenced
Terrero-Ovalles to an aggregate of sixteen years of Level V incarceration to be
suspended after four years, followed by probation. Terrero-Ovalles did not appeal.
(3) In January 2018, Terrero-Ovalles filed a motion to modify his sentence.
The Superior Court denied the motion, noting that each drug dealing charge carried
a minimum mandatory sentence of two years that could not be suspended. On
October 19, 2018, Terrero-Ovalles filed his first motion for postconviction relief
under Superior Court Criminal Rule 61 (“Rule 61”). Terrero-Ovalles argued that (i)
when he was arrested, the police did not show him an arrest warrant or read him his
Miranda rights; (ii) the State’s use of a confidential informant constituted
entrapment, and the State’s investigation was otherwise suspect; (iii) the drug
quantities reflected in State’s laboratory reports differed from the quantities listed in
the indictment; (iv) his trial attorneys were ineffective for failing to raise those
2 issues; and (v) his plea was null and void because appointed counsel led him to
believe his final case review was his last case review date and that the State would
not be offering another plea.
(4) The Superior Court denied the motion on January 20, 2019, finding that
the majority of Terrero-Ovalles’ claims were procedurally barred under Rule
61(i)(3) and by his knowing and voluntary guilty plea. The Superior Court also held
that Terrero-Ovalles failed to show that trial counsel provided ineffective assistance
of counsel. This appeal followed.
(5) This Court reviews the Superior Court’s denial of postconviction relief
for abuse of discretion and questions of law de novo.1 The Court must consider the
procedural requirements of Rule 61 before it addresses any substantive claim.2 Rule
61(i)(3) provides that any ground for relief that was not raised in the proceedings
leading to the judgment of conviction is thereafter barred unless the defendant can
establish cause for relief from the procedural default and prejudice from a violation
of the defendant’s rights. To establish cause, the movant must demonstrate that an
external impediment prevented him from raising the issue earlier.3 In addition, the
movant must show actual prejudice resulting from the alleged error.4
1 Dawson v. State, 673 A.2d 1186, 1190 (Del. 1996). 2 Younger v. State, 580 A.2d 552, 554 (Del. 1990). 3 Id. at 556. 4 Id.
3 (6) We agree with the Superior Court’s reasoning that, aside from his
claims of ineffective assistance of counsel, Terrero-Ovalles’ claims could have been
raised in the proceedings below and were therefore procedurally barred under Rule
61(i)(3). Terrero-Ovalles did not attempt to establish cause for relief from the
procedural default or actual prejudice.
(7) As the Superior Court also recognized, a defendant who enters a
knowing, intelligent, and voluntary guilty plea waives his right to challenge errors
or defects preceding the entry of the plea.5 The record reflects that Terrero-Ovalles
knowingly, intelligently, and voluntarily pleaded guilty to two counts of drug
dealing. On the Truth-in-Sentencing Guilty Plea Form, Terrero-Ovalles indicated
he freely and voluntarily decided to plead guilty, no one threatened or forced him to
plead guilty, and he understood he was giving up certain constitutional rights by
pleading guilty. Terrero-Ovalles also acknowledged that he faced a prison sentence
of up to fifty years by pleading guilty. During the plea colloquy, Terrero-Ovalles
conceded that, because he is not a citizen of the United States, he faced deportation
as a consequence of pleading guilty. Upon questioning by the Superior Court,
Terrero-Ovalles affirmed that he was freely and voluntarily deciding to plead guilty,
that no one had threatened or forced him to plead guilty, that he was giving up his
right to compel the State to prove every element of the charges he faced, that he was
5 Miller v. State, 840 A.2d 1229, 1232 (Del. 2003).
4 waiving the right to hear and question the State’s evidence, that he was guilty of
selling a controlled substance to a confidential informant on two occasions, that he
faced minimum mandatory prison time for each offense, and that he understood the
Court was not bound by the State’s sentencing recommendation. Absent clear and
convincing evidence to the contrary, Terrero-Ovalles is bound by his representations
to the Court during the guilty plea colloquy and in the Truth-in-Sentencing Guilty
Plea Form.6 Therefore, Terrero-Ovalles has waived his right to challenge errors that
may have occurred in the proceedings leading up to his plea.
(8) In order to prevail on a claim of ineffective assistance of counsel after
pleading guilty, Terrero-Ovalles must show that (i) trial counsel’s conduct fell below
an objective standard of reasonableness, and (ii) there is a reasonable probability
that, but for counsel’s alleged errors, he would not have pleaded guilty but would
have insisted on proceeding to trial.7 Terrero-Ovalles must make concrete
allegations of cause and actual prejudice to substantiate a claim of ineffective
assistance of counsel.8 Although not insurmountable, there is a strong presumption
that counsel’s representation was professionally reasonable.9
6 Somerville v. State, 703 A.2d 629, 632 (Del. 1997). 7 Miller, 840 A.2d at 1231. 8 Stone v.
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IN THE SUPREME COURT OF THE STATE OF DELAWARE
OSCAR TERRERO-OVALLES, § § No. 91, 2019 Defendant Below– § Appellant, § § v. § Court Below–Superior Court § of the State of Delaware STATE OF DELAWARE, § § Cr. ID 1612003435 (N) Plaintiff Below– § Appellee. §
Submitted: April 18, 2019 Decided: June 3, 2019
Before STRINE, Chief Justice; SEITZ and TRAYNOR, Justices.
ORDER
After careful consideration of the appellant’s opening brief, the State’s motion
to affirm, and the record on appeal, it appears to the Court that:
(1) The appellant, Oscar Terrero-Ovalles, appeals from the Superior
Court’s order denying his first motion for postconviction relief. The State has filed
a motion to affirm the Superior Court’s judgment on the ground that it is manifest
on the face of Terrero-Ovalles’ opening brief that his appeal is without merit. We
agree and affirm.
(2) In May 2017, a Superior Court grand jury indicted Terrero-Ovalles for
five counts of drug dealing, five counts of aggravated possession, and one count of
possession of drug paraphernalia. The charges stemmed from a drug investigation conducted by the Drug Enforcement Administration (“DEA”) with assistance from
a confidential informant. At Terrero-Ovalles’ preliminary hearing, defense counsel
questioned the investigating DEA agent about why Terrero-Ovalles came to the
DEA’s attention and how the DEA conducted its subsequent probe into Terrero-
Ovalles’ activities. In the Superior Court, counsel moved to withdraw and appointed
counsel entered his appearance. On November 13, 2017, Terrero-Ovalles pleaded
guilty to two counts of drug dealing. In exchange for his plea, the State entered a
nolle prosequi on the remaining charges. The Superior Court immediately sentenced
Terrero-Ovalles to an aggregate of sixteen years of Level V incarceration to be
suspended after four years, followed by probation. Terrero-Ovalles did not appeal.
(3) In January 2018, Terrero-Ovalles filed a motion to modify his sentence.
The Superior Court denied the motion, noting that each drug dealing charge carried
a minimum mandatory sentence of two years that could not be suspended. On
October 19, 2018, Terrero-Ovalles filed his first motion for postconviction relief
under Superior Court Criminal Rule 61 (“Rule 61”). Terrero-Ovalles argued that (i)
when he was arrested, the police did not show him an arrest warrant or read him his
Miranda rights; (ii) the State’s use of a confidential informant constituted
entrapment, and the State’s investigation was otherwise suspect; (iii) the drug
quantities reflected in State’s laboratory reports differed from the quantities listed in
the indictment; (iv) his trial attorneys were ineffective for failing to raise those
2 issues; and (v) his plea was null and void because appointed counsel led him to
believe his final case review was his last case review date and that the State would
not be offering another plea.
(4) The Superior Court denied the motion on January 20, 2019, finding that
the majority of Terrero-Ovalles’ claims were procedurally barred under Rule
61(i)(3) and by his knowing and voluntary guilty plea. The Superior Court also held
that Terrero-Ovalles failed to show that trial counsel provided ineffective assistance
of counsel. This appeal followed.
(5) This Court reviews the Superior Court’s denial of postconviction relief
for abuse of discretion and questions of law de novo.1 The Court must consider the
procedural requirements of Rule 61 before it addresses any substantive claim.2 Rule
61(i)(3) provides that any ground for relief that was not raised in the proceedings
leading to the judgment of conviction is thereafter barred unless the defendant can
establish cause for relief from the procedural default and prejudice from a violation
of the defendant’s rights. To establish cause, the movant must demonstrate that an
external impediment prevented him from raising the issue earlier.3 In addition, the
movant must show actual prejudice resulting from the alleged error.4
1 Dawson v. State, 673 A.2d 1186, 1190 (Del. 1996). 2 Younger v. State, 580 A.2d 552, 554 (Del. 1990). 3 Id. at 556. 4 Id.
3 (6) We agree with the Superior Court’s reasoning that, aside from his
claims of ineffective assistance of counsel, Terrero-Ovalles’ claims could have been
raised in the proceedings below and were therefore procedurally barred under Rule
61(i)(3). Terrero-Ovalles did not attempt to establish cause for relief from the
procedural default or actual prejudice.
(7) As the Superior Court also recognized, a defendant who enters a
knowing, intelligent, and voluntary guilty plea waives his right to challenge errors
or defects preceding the entry of the plea.5 The record reflects that Terrero-Ovalles
knowingly, intelligently, and voluntarily pleaded guilty to two counts of drug
dealing. On the Truth-in-Sentencing Guilty Plea Form, Terrero-Ovalles indicated
he freely and voluntarily decided to plead guilty, no one threatened or forced him to
plead guilty, and he understood he was giving up certain constitutional rights by
pleading guilty. Terrero-Ovalles also acknowledged that he faced a prison sentence
of up to fifty years by pleading guilty. During the plea colloquy, Terrero-Ovalles
conceded that, because he is not a citizen of the United States, he faced deportation
as a consequence of pleading guilty. Upon questioning by the Superior Court,
Terrero-Ovalles affirmed that he was freely and voluntarily deciding to plead guilty,
that no one had threatened or forced him to plead guilty, that he was giving up his
right to compel the State to prove every element of the charges he faced, that he was
5 Miller v. State, 840 A.2d 1229, 1232 (Del. 2003).
4 waiving the right to hear and question the State’s evidence, that he was guilty of
selling a controlled substance to a confidential informant on two occasions, that he
faced minimum mandatory prison time for each offense, and that he understood the
Court was not bound by the State’s sentencing recommendation. Absent clear and
convincing evidence to the contrary, Terrero-Ovalles is bound by his representations
to the Court during the guilty plea colloquy and in the Truth-in-Sentencing Guilty
Plea Form.6 Therefore, Terrero-Ovalles has waived his right to challenge errors that
may have occurred in the proceedings leading up to his plea.
(8) In order to prevail on a claim of ineffective assistance of counsel after
pleading guilty, Terrero-Ovalles must show that (i) trial counsel’s conduct fell below
an objective standard of reasonableness, and (ii) there is a reasonable probability
that, but for counsel’s alleged errors, he would not have pleaded guilty but would
have insisted on proceeding to trial.7 Terrero-Ovalles must make concrete
allegations of cause and actual prejudice to substantiate a claim of ineffective
assistance of counsel.8 Although not insurmountable, there is a strong presumption
that counsel’s representation was professionally reasonable.9
6 Somerville v. State, 703 A.2d 629, 632 (Del. 1997). 7 Miller, 840 A.2d at 1231. 8 Stone v. State, 690 A.2d 924, 925 (Del. 1996). 9 Id.
5 (9) After careful consideration, we concur with the Superior Court’s
conclusion that Terrero-Ovalles failed to establish either cause or prejudice to
substantiate his claim that one or both of his attorneys provided ineffective assistance
of counsel. Terrero-Ovalles’ initial attorney effectively questioned the investigating
DEA agent at Terrero-Ovalles’ preliminary hearing. Prior to the final case review,
appointed counsel reviewed with Terrero-Ovalles the State’s evidence, which
included audio and visual recordings of Terrero-Ovalles selling drugs to a
confidential informant. Terrero-Ovalles has not shown that either counsel’s
representation was professionally unreasonable, nor has he shown how he was
prejudiced by counsel’s alleged errors. Given the nature of the evidence against him,
the Court cannot conclude that, but for trial counsel’s alleged errors, there is a
reasonable probability that Terrero-Ovalles would have refused the State’s plea offer
and achieved a more favorable result at trial.
NOW, THEREFORE, IT IS ORDERED that the judgment of the Superior
Court is AFFIRMED.
BY THE COURT:
/s/ Gary F. Traynor Justice