Opinion
I.D. Nos. 0908006569, 0911019552.
Submitted: March 15, 2010.
Decided: May 3, 2010.
On Defendant's Motion to Withdraw Guilty Plea. DENIED.
Daniel G. Simmons, Esquire, Deputy Attorney General, Department of Justice, Delaware Attorney for the State.
Andrew J. Witherell, Esquire, Andrew J. Witherell, Attorney at Law, Wilmington, Delaware.
Dear Counsel:
On January 4, 2010, Defendant entered a guilty plea to charges of Possession With Intent to Deliver a Non-Narcotic and Keeping or Maintaining a Vehicle for Keeping or Delivering Controlled Substances. Defendant, through counsel, has now filed a motion to withdraw his guilty plea alleging that "[his] lawyer didn't give [him] all [his] information pertaining to [his] case . . . [and] refused to put in motions [he] requested such as a suppression hearing."
Mot. to withdraw as counsel at 5 (Defendant's written accusations were incorporated into counsel's motion to withdraw as counsel).
A motion to withdraw a guilty plea is controlled by Superior Court Criminal Rule 32(d). This rule states that the Court "may permit withdrawal of the plea upon a showing by the defendant of any fair and just reason." To determine whether Defendant has alleged a "fair and just reason," the Court will consider the following factors:
(a) Was there a procedural defect in taking the plea; (b) Did the defendant knowingly and voluntarily consent to the plea agreement; (c) Does the defendant presently have a basis to assert legal innocence; (d) Did the defendant have adequate legal counsel throughout the proceedings; and (e) Does granting the motion prejudice the State or unduly inconvenience the Court.
State v. Friend, 1994 WL 234120, *1-2 (Del. Super.)
After considering these factors and Defendant's arguments based on the factors, the Court finds no "fair and just reason" to grant Defendant's motion because the record demonstrates that Defendant entered his plea knowingly and voluntarily and understood the rights he was waiving. Additionally, and to the extent that Defendant argues "ineffective assistance of counsel," Defendant's allegations fail to meet the burden of proof required by Strickland v. Washington.
466 U.S. 668 (1984).
Prior to accepting his plea, the Court engaged in a particularly thorough colloquy with Defendant:
Q: Have you freely and voluntarily decided to plea guilty to the charges listed in your written plea agreement?
A: Yes.
Q: Do you understand that because you are pleading guilty you will not have a trial and you, therefore, waive or give up certain Constitutional rights?
A: Yes.
Q: I have noticed during this plea colloquy your answers haven been a little hesitant, it seems to me, so I want to make sure that you are knowingly, voluntarily and intelligently entering this plea.
Do you believe you are knowingly, voluntarily and intelligently pleading guilty to these two charges?
A. Yes.
Q. Do you understand what's being done today is final, you will not be able to come back at any later time and seek to withdraw these guilty pleas?
A. Yes.
Tr. of January 4, 2010 Plea Hearing 8-15.
Defendant stated on the record that he understood his rights and understood that the guilty pleas were final. Defendant has failed to present any "fair and just reason" why he should be permitted to withdraw his plea.
State v. Wright, 2009 WL 866185, at *5 (Del. Super.) (holding that Defendant could not withdraw his guilty plea because his later assertion of innocence was not a valid reason to overcome the Court's thorough plea colloquy).
Finally, the Court need not consider Defendant's second allegation that he was not adequately represented by counsel. Pursuant to Strickland, Defendant must establish that counsel's efforts "fell below an objective standard of reasonableness" and that, but for counsel's alleged error there was a reasonable probability that the outcome would have been different. Conclusory allegations are legally insufficient to prove ineffective assistance of counsel; Defendant must allege concrete allegations of actual prejudice and substantiate them. When evaluating counsel's performance, "a court must indulge a strong presumption that counsel's conduct falls within the wide range of professional assistance."
Strickland, 466 U.S. at 688, 694.
Jordan v. State, 1994 WL 466142 (Del. Supr.) (citing Younger v. State, 580 A.2d 552 (Del. 1990)).
Strickland, 446 U.S. at 689.
Here, Defendant has merely alleged conclusory allegations and failed to establish any facts demonstrating that counsel's performance fell below an objective standard of reasonableness. Although Defendant may be unhappy that counsel did not file certain motions on his behalf, "[i]t is not this Court's function to second-guess reasonable trial tactics." Defendant's allegations fail to meet the test set forth in Strickland. No fair and just reason exists to warrant the withdrawal of the guilty plea. As such, Defendant's Motion to Withdraw Guilty Plea is DENIED. Sentencing will take place on Friday, May 14, 2010 at 9:30 a.m. before the undersigned judge.
State v. Drummond, 2002 WL 524283 (Del. Super.).
Defendant's counsel, Andrew J. Witherell, Esquire, filed a motion to withdraw as counsel stating that "[t]o the extent counsel is considered ineffective, counsel should not be required to continue as counsel in either of the above actions." Because this Court does not find counsel ineffective, Mr. Witherell will remain on this case.