Opinion
Cr. A. Nos. IN93-03-0550 0551; ID No. 93002355DI.
Submitted: March 2, 1999.
Decided: April 12, 2000.
Upon Defendant's Motion for Postconviction Relief — Denied.
Ferris W. Wharton, Esquire, Department of Justice, State Prosecutor, Wilmington, Delaware, Attorney for the State.
Gary F. Traynor, Esquire, Prickett, Jones Elliott, Dover, Delaware, Attorney for Defendant.
OPINION
PROCEDURAL POSTURE
On March 8, 1996, the Defendant, Glenn E. MacDonald moved to withdraw the guilty pleas he entered on March 11, 1993 to Criminal Solicitation First Degree and Conspiracy First Degree. In a separate motion filed that same day, he petitioned for postconviction relief from his conviction for Murder First Degree arising out of the death of Julie Spencer in a separate but related case. The motion to withdraw the guilty plea was refiled as a Motion for Post-Conviction Relief pursuant to Superior Court Criminal Rule 61 on March 20, 1996.
The Honorable Norman A. Barron who presided over the trials of the murder charge against the Defendant voluntarily recused himself from further involvement in this case on September 9, 1996 for reasons unrelated to the merits of either case. The cases were subsequently reassigned to the undersigned on or about September 26, 1996 while discovery was ongoing.
The Court deferred consideration of the Defendant's motion challenging his conviction for the Spencer murder pending resolution of the motion seeking to withdraw his guilty pleas on the solicitation and conspiracy charges. That action was taken because the instant plea agreement contained a waiver of any rights the Defendant may have had to challenge the. aforementioned murder conviction. An evidentiary hearing was conducted on March 17 thru 20, and June 9, 1997. Briefing was completed and argument was held on July 15, 1998. That which follows is the Court's resolution of the issues so presented.
For some unknown reason, the transcript of the March 1997 proceedings, unlike that which was held in June, were not formally docketed, but was sent to the parties. On March 2, 1999, the State sent copies to the court at the court's request.
STATEMENT OF FACTS
The sequence of events which culminated in the entry of the aforementioned guilty pleas on March 11, 1993, began with the disappearance of the Defendant's former girlfriend, Julie Spencer, on September 30, 1990. One week later, Ms. Spencer's body was found in the marshy area off Delaware State Route 9 at Augustine Beach in New Castle County. The cause of death was strangulation and blunt force trauma to the head. The Delaware State Police considered the Defendant and Allan Smith, one of the Defendant's associates, to be the prime suspects in her death. After Smith gave a statement implicating him, the Defendant was arrested and charged with Murder First Degree.
The Defendant was tried twice for the murder of Ms. Spencer. The first trial began on February 24, 1992. During that trial, he was represented by Joseph W. Benson, Esquire and Andrew G. Ahern, in, Esquire. A mistrial was declared after the jury was unable to reach a unanimous decision. Shortly thereafter, Benson and Ahern withdrew as counsel. Joseph A. Gabay, Esquire and Jerome M. Capone, Esquire were then appointed by the Court to represent the Defendant. The retrial began on January 20, 1993. It ended on February 17, 1993, when the jury returned a guilty verdict on Murder First Degree, the sole count of the indictment. Smith was the State's chief witness at both trials. The Defendant's bail was revoked and he was transferred to the Multi-Purpose Criminal Justice Facility at Gander Hill to await sentencing. That event was scheduled for May 7, 1993.
Apparently, the Defendant and/or his family were unable to reach a mutually acceptable agreement regarding the continued representation of the Defendant by those attorneys.
On February 25, 1993, Deputy Attorney General Jeffrey M. Taschner, received a telephone call from an Assistant United States Attorney concerning information being offered to the United States Secret Service by an inmate at Gander Hill named John Foley. Foley indicated that the Defendant had asked him if he could arrange for a "hit" on Allan Smith. The following day, Smith was advised of the situation and was informed that investigators intended to explore the information further.
On March 2, 1993, Foley was interviewed by law enforcement. authorities. He discussed his relationship with the Defendant and how he came to know the details surrounding the Defendant's plan to have Smith killed. He also described the solicitation of Garrett Markward, one of his acquaintances, who was to carry out the "hit" and the involvement of Tracy MacDonald, the Defendant's wife. Based on this information, investigators devised a strategy to protect and develop evidence sufficient to arrest the Defendant along with those alleged to have been acting with him or at his behest. Orders authorizing electronic telephone surveillance or "wiretaps" were obtained on March 3, 1993 and implemented immediately.
Following the interception of certain telephone conversations, the Delaware State Police set up an operation to apprehend the principal actors as they attempted to carry out the purported plot. At approximately 3:00 p.m. on March 4, 1993, a police officer posing as Tracy MacDonald met with Markward. The officer discussed with him arrangements to have Smith killed. At the same time the officer provided Markward with cash, a photograph of Smith and other information necessary to carry out the plot. Shortly thereafter, Markward was arrested and detained in default of bail. After his arrest, Markward confirmed that he, through Foley, had become a part of the plot against Smith.
Markward is alleged to have told Detective Edward Mayfield of the Delaware State Police who interviewed him that Smith was only to be beaten, not killed, which is all the fee discussed would cover.
At approximately 8:00 p.m. on March 4, 1993, the Defendant called Tracy MacDonald and told her to meet an individual at a local shopping center later that evening to make arrangements to carry out the plot against Smith. They agreed that she would take no money with her, but would discuss the financial arrangements with that individual when she met him. At approximately 9:00 p.m., a police officer posing as Markward met with Tracy MacDonald as planned. During that meeting, Tracy MacDonald provided the officer with a list of people she wanted Smith to write and admit that he had lied about the Defendant's involvement in the Spencer murder. She also told the officer that Smith was to be hurt and that he was to disappear.
At the request of the officer portraying Markward, Tracy MacDonald went to the home of the Defendant's parents, Robert and Shirley MacDonald, in an unsuccessful effort to obtain money to pay those involved in carrying out the plan. Notwithstanding that setback, Tracy MacDonald provided the officer with other personal information concerning Smith along with directions to Smith's house. It was at that point that Tracy MacDonald was arrested. After her arrest, she admitted that the Defendant's mother was to be the source of the funds to pay for the plot against Smith. The next day, Tracy MacDonald, like Markward, was presented to a magistrate, and ultimately detained in default of bail.
According to the Defendant, he was approached by John Foley who indicated that he might be able to help make something happen to Smith to get him to tell the truth about the Spencer murder. Although he initially rebuffed Foley, Tracy MacDonald convinced the Defendant to pursue the offer. Foley subsequently came to him one night while he was on the phone and indicated that whatever was going to happen, had to happen immediately. It was then that the Defendant gave Tracy MacDonald instructions to meet with the person they thought would be Markward. The Defendant's reasoning for doing so at that time was that he was frustrated, not thinking clearly and wanted to explore his options. However, he did not believe that Foley could do much to help and did not want Smith killed in any event because it would reflect negatively on him.
On March 5, 1993, the Defendant was arrested for his involvement in the plot to kill Smith by Detective Mayfield. The arrest occurred at Gander Hill where the Defendant was incarcerated. After being processed for that arrest, the Defendant met with Detective Mayfield who advised him of his constitutional rights. Detective Mayfield informed the Defendant that Tracy MacDonald had been arrested and that there were others who were being interviewed, including the Defendant's parents. In response, the Defendant indicated that he wanted to talk to him and "get this all taken care of." Detective Mayfield contacted DAG Taschner and advised him that the Defendant might want to make admissions concerning recent events. DAG Taschner in turn contacted the Defendant's attorneys and began discussing a plan to resolve all matters pertaining to the Defendant.
Detective Mayfield also added that there was no basis to arrest the Defendant's father at that time.
Following his meeting with Detective Mayfield, the Defendant was brought to a courtroom where he was formally advised of the charges lodged against him and a bail hearing was held. Gabay was present, although no substantive exchange between Gabay he and the Defendant occurred at that time. At the conclusion of the hearing, Gabay promised to return in the near future.
Later that evening, the Defendant was transferred to the Delaware Correctional Center where, after being processed, he was placed in an isolation cell. The cell measured five feet by nine feet with a toilet and lighting that operated automatically. There was also a window which could not be completely closed.
For two of the next four days that he was held there, the Defendant was placed on "suicide watch". An inmate on suicide watch was awakened every fifteen minutes to make sure that he had not harmed himself. In addition, Defendant was not permitted any contact with the world outside the prison which included access to printed or electronic sources of news. He ate his meals there as well, but was allowed out of that cell two times a day to take medication for an injury which predated his incarceration.
See Def.'s Aff. at Para. 16, State v. MacDonald, Cr. A. No. IN90-10-1063 (March 7, 1996).
On March 9, 1993, the Defendant was escorted to the maximum security unit at the prison where he met with his attorneys. Immediately before being notified of their arrival, the Defendant was occupied doing laundry in his cell. As a result, he was forced to put on wet underclothing to attend that meeting which was estimated to have lasted between ninety minutes and two and one-half hours. The temperature outside was 40 degrees.
On March 8, the Defendant's attorneys met with representatives of the Department of Justice and obtained the specifics of the State's plea offer.
The Defendant's recollection of what ensued at that meeting was not positive. To be specific, the Defendant felt like his cause was lost and those close to him were in legal jeopardy. He had been unable to sleep or eat properly while confined in isolation. His attorneys related that they had him placed on suicide watch out of an abundance of caution. When he asked about the status of his family and friends, he was told that only Tracy MacDonald had been arrested. There was no discussion regarding his version of the facts or the existence of any defenses to the new charges. Nor was he provided with any information about those. charges other than the existence and results of the intercepted telephone conversations. They did not seem enthusiastic about defending him.
He testified that there was no indication that his attorneys had listened to the aforementioned conversations or had obtained any police reports relevant to the new charges.
According to the Defendant, he asked Capone and Gabay "You guys always thought I did it, didn't you?" According to Capone and Gabay, the Defendant's quaere was stated as "You guys always knew I did it, didn't you?"
His attorneys did go over the options available to him given the then recent turn of events. He was informed that his chances on an appeal of his conviction for the Spencer murder were not as good because of the imposition of the new charges. The options available at that point, including the State's proposed plea offer, were then reviewed. Specifically, the Defendant was told that he could take a plea to charges of solicitation and conspiracy, give up his right to appeal the Spencer murder conviction and make a videotaped statement admitting his participation in that murder. If he did accept the plea offer, the members of his family who where allegedly involved in the plot against Smith, would be treated leniently. The terms were not negotiable, and the deal had to be struck immediately or not at all. Otherwise, he and those close to him could go to trial on the new charges, which would also include Attempted Murder First Degree, and pursue his appeal of the Spencer murder conviction as originally planned.
If the Defendant was successful in appealing the Spencer murder conviction it was likely that evidence of the new charges would be admissible in any retrial. The likelihood of success of such a retrial would therefore be substantially diminished.
The Defendant felt that Capone and Gabay were insistent that he accept the State's plea offer. Tracy MacDonald, he was told, faced life in prison as did his mother. He was also concerned about the effect of any charges or conviction on his father's health. The Defendant therefore believed that although he would have to admit responsibility for a murder he did not commit, he could spare everyone else the possibility of suffering severe sanctions by entering into the proposed agreement with the State.
Once the Defendant indicated that he would accept the plea, the discussion focused on the content of the statement that the Defendant was going to make regarding the Spencer murder. His counsel told him he had to be consistent with the testimony which came out at the second trial and helped formulate the version he was going to give the next day. At the conclusion of the meeting, notes of that discussion were presented to the Defendant to assist him in preparing for the upcoming events.
After his attorneys departed, the Defendant was taken to another cell where he in fact reviewed the notes as directed. He was visibly upset and felt that he had no option other than to accept the State's offer. In his words "everything had free wheeled and spun out of control." His difficulty sleeping continued.
The defendant was upset enough that Department of Corrections Staff Lt. Joseph Dudlek directed that he be taken to an office so that the inmates on the cell block to which he was being transferred would not see him in that condition. According to the lieutenant, if an inmate showed any sign of being weak, he would be subject to abuse by the others.
Gabay and Capone painted a slightly different picture of that meeting. The Defendant appeared disheveled but seemed to understand what was going on. There was no difference between his demeanor and responsiveness on that date than when they discussed the plea offer made by the State during the second trial. Both attorneys indicated that they thoroughly discussed the situation with the Defendant regarding the new charges, the State's plea offer, his chances of success on the appeal of the Spencer murder conviction and the options with which he was faced. They were prepared to continue to represent the Defendant if he rejected the offer and their opinion as to the viability of his appeal of the Spencer murder conviction remained the same.
The State offered to allow the Defendant to plea to Murder Second Degree during the second Spencer murder trial. Both attorneys had strongly recommended that he accept the offer but the Defendant steadfastly refused to follow that advice.
Counsel felt that there were several issues that would result in the reversal of that conviction. One in particular was based on the Court's ruling on an evidentiary matter which they argue was contrary to the dictates of the United States Supreme Court in Doyle v. Ohio, 426 U.S. 610 (1976). They estimated that the Defendant had a better than fifty percent chance of success on that issue.
The decision was the Defendant's and neither attempted to persuade him either way. The Defendant understood trial procedures and was involved in discussions regarding the various aspects of his defense before and during the second trial. Both felt that the Defendant knew and appreciated the rights he was giving up by accepting the plea offer. In short, the Defendant was told that if he took the plea offered, he would spend the rest of his life in jail. Despite the consequences which would flow from his choice, there was no reluctance on his part in choosing to accept the plea and admitting his complicity in the Spencer murder. However, they concede that the Defendant was concerned with the welfare of his mother and his wife.
There was never any real concern that the defendant's father would be charged with any participation in the plot against Smith.
They did indicate to the Defendant that he knew what happened with regard to the plot against Smith better than they did, but that if he rejected the plea, they would go forward and prepare any existing defenses. He was not told whether there were or were not any defenses available. Moreover, while it was true that other than the information provided by the State, no investigation had been conducted by them, both attorneys felt that none was necessary prior to discussing the situation with the Defendant. Following their meeting, no further investigation was necessary given the Defendant's desire to resolve all the issues by taking the plea.
Having so conferred with the Defendant, counsel then drafted a letter to DAG Taschner containing a proffer as to what the Defendant was willing to admit and/or concede. That letter was dated March 9, 1993. The letter described how Julie Spencer was killed as well as the events leading up to her death. Also described were the Defendant's part in the plot against Smith along with the involvement of his mother and Tracy MacDonald. The letter concluded with a statement that Defendant would waive any rights to contest his conviction for the murder of Julie Spencer.
On March 10, 1993, the Defendant was brought to Delaware State Police Barracks at Troop 2 for purposes of providing the agreed upon statement. Capone had not arrived at that point. While waiting, Detective Mayfield did allow the Defendant, at the Defendant's request, to make a telephone call to his parents' home without anyone present. He explained to them that he was there to make a statement admitting his involvement in the Spencer murder and why, but continued to maintain his innocence of that crime. The call lasted five to ten minutes. When Detective Mayfield returned, he asked the Defendant if everything was still "on track" and the Defendant responded in the affirmative. Shortly thereafter, his attorney arrived.
Capone asked the Defendant whether he wanted to proceed as planned. He apparently provided an affirmative response because, after some discussion between Capone, DAG Taschner and Detective Mayfield, the Defendant provided the videotaped statement to Detective Mayfield in the presence of Capone. In that statement, the Defendant admitted and described his involvement in the murder of Julie Spencer as well as his involvement in the plot to kill Smith. At its conclusion, the Defendant was returned to custody to await entry of his pleas. He did not have any further contact with either of his attorneys that day.
Included as a part of the videotaped proceedings was the agreement/understanding reached between the parties relative to the formal disposition of all pending matters as discussed with the Defendant by his attorneys the day before. In addition to providing the description of his involvement in the murder of Julie Spencer, the Defendant would plead guilty to Solicitation First Degree and Conspiracy First Degree. The State agreed not to make any recommendation as to the sentence imposed on those charges and would enter a nolle prosequi on the charge of Attempted Murder First Degree. Tracy MacDonald would also be allowed to enter a plea to Criminal Solicitation First Degree and Conspiracy First Degree. The State would recommend no more than two years in prison and possibly less depending upon the extent of her cooperation. Her bail was to be reduced to an unsecured amount with certain other conditions. The State further agreed that if the Defendant's mother was charged and arrested in connection with the plot against Smith, she would be allowed to plead guilty to the same charges that were offered to Tracy MacDonald. However, the sentence would be probation and she too would be immediately released on unsecured bail. Lastly, if the Defendant's father was shown to have been involved in the plot, he would be offered the same arrangement.
On March 11, 1993, the Defendant was returned to the Superior Court in New Castle County to enter pleas of guilt to Criminal Solicitation First Degree and Conspiracy First Degree before Judge Norman A. Barron. The State first outlined the terms of the agreement including the charges to which the pleas were being entered, the provision of the videotaped statement, which Judge Barron had reviewed, and the waiver of any appeal or postconviction rights arising out of his conviction for the Spencer murder. Gabay then reviewed that agreement as well as the consultation he and Capone had with the Defendant relative thereto. Gabay informed the Court that counsel had gone over each of the documents with the Defendant that the Defendant had completed and/or signed, the rights that were being given up and the sentences that he was facing on the charges to which he was pleading guilty that day as well as on the Murder First Degree charge arising out of the Spencer murder. He concluded his initial presentation with the following remarks:
Based upon Capone's recollection of the event, it appears that the defendant met with his attorneys in private prior to the entry of the plea. However, Capone was not able to recall the specifics of that meeting.
[The Defendant] understands he has pending a sentencing for murder in the first degree carrying a mandatory life sentence without probation or parole and has agreed not to pursue any appeal or post-conviction relief as a result of this plea agreement.
He understands that constitutes a waiver of rights relative to the other conviction, but is incorporated by reference as part of the tape and plea agreement to the solicitation conspiracy.
It is the opinion of Mr. Capone and myself that Mr. MacDonald has knowingly, intelligently and voluntarily come to this conclusion of his matter today. He has done so of his own free will and, as we will address at sentencing, many of the matters which are resolved today were at the instigation of Mr. MacDonald in an effort to assist people and spare people any further grief in connection with his actions.
With that having been said, your Honor, I believe that you will find the plea should be accepted as tendered.
Plea Colloquy Tr. at 3 to 5 (March 11, 1993)
Judge Barron then engaged in a colloquy with the Defendant concerning the agreement outlined by the State and Gabay, and the Defendant's decision to accept the terms of that agreement. The relevant portions of that colloquy are as follows:
The Court: Have you freely and voluntarily decided to plead guilty to the charges listed in your plea agreement, which I'm holding up?
The Defendant: Yes, I have.
The Court: All right. I see the signature at the bottom right of the plea agreement, Glenn B. MacDonald. That's your signature?
The Defendant: Yes, that is.
The Court: All right. Under this plea agreement, it indicates that you are to plead guilty to criminal solicitation in the first degree and conspiracy in the first degree, and in exchange for which the State is to enter a nolle prosequi on an attempted murder first degree charge, that is, they are dropping that charge. The State will recommend and agrees to abide by all terms and conditions articulated in the video-taped statement of yourself on March the 10th, 1993 and admitted as a court exhibit. Under other agreements, it indicates that you are not to pursue an appeal or post-conviction relief from your conviction for murder in the first degree. Is that your knowledge of what the contents of the plea agreements are?
The Defendant: Yes.
The Court: And do you agree with those contents?
The Defendant: Yes, I do.
The Court: Okay. And I'm holding up a guilty plea form, and I also see the same signature, Glenn E. MacDonald, at the bottom right of the guilty plea form. That's also your signature?
The Defendant: Yes, it is.
The Court: Did you and your attorneys go over the questions asked on the guilty plea form?
The Defendant: Yes, we did.
The Court: And did you understand all the questions?
The Defendant: Yes.
The Court: Okay. Do you understand you don't have to take this plea, you could go to trial, and if you went to trial, you would have certain trial rights.
Do you understand each and every one of those trial rights?
The Defendant: Yes, I do.
. . .
The Court: Are you satisfied with Mr. Gabay and Mr. Capone as your lawyers in connection with this matter and their representation of you in connection with this case?
The Defendant: Yes, I am.
The Court: Has Mr. Capone, Mr. Gabay or the State or any person forced or coerced you into pleading guilty today?
The Defendant: No.
The Court: Are you doing so of your own free will?
The Defendant: Yes.
Plea Colloquy Tr. at 6 to 9.
The Defendant then admitted his guilt on the solicitation and conspiracy charges and indicated that they were knowingly, intelligently and voluntarily entered. When asked by Judge Barron if he had any questions about what he was doing, the Defendant indicated that he had none. After hearing from the Spencer family, counsel for the State and the defense, the Court imposed a total sentence of life plus ten years.
The Defendant received a mandatory life sentence without the possibility of probation, parole or other manner of sentence reduction on the Murder First Degree charge and five years each on the solicitation and conspiracy charges.
Tracy MacDonald was released on bail that same day. She too pled guilty to Solicitation First Degree and Conspiracy First Degree and was ultimately sentenced on May 13, 1994 to a total of eighteen months in prison followed by six months of probation. The Defendant's mother was never prosecuted for any role she was alleged to have had in the plot against Smith. Neither was his father.
See State v. MacDonald, Del. Super., Cr. A. No. IN93-03-0533, Barron, J. (May 13, 1994).
Markward was tried by a jury from May 10 to May 13, 1994, and found guilty of Conspiracy First Degree. One of the witnesses who appeared at that trial was the Defendant who was called to testify by the defense. His testimony included an admission that he did conspire with Foley to kill Smith. Although that testimony was not a part of any agreement with the State, the Defendant asserts that he maintained the fiction because Tracy MacDonald had not been sentenced. Coincidently or not, and as is reflected above, she was sentenced the day the jury returned its verdict against Markward.
A mistrial was declared on the Attempted Murder First Degree charge because the jury was unable to reach a verdict on that count of the indictment against Markward. See State v. Markward, Del. Super., Cr. A. No. IN93-04-0777, Barron, J. (May 13, 1994).
DISCUSSION
In essence, the Defendant contends that his plea to the charges arising out of the plot to kill Smith, along with the waiver of the right to challenge his conviction for the Spencer murder, were not voluntarily and knowingly made. Those infirmities are based upon the ineffective assistance of counsel provided by Gabay and Capone during that period of time following his convictions for the Spencer murder up to and including his entry of the pleas before Judge Barron. In addition, he claims that the threats to incarcerate his parents and wife, as well as the conditions of his confinement during the relevant periods of that time, independently and together with the ineffective assistance of his counsel, constitute such circumstances as in the interest of justice, should allow him to withdraw the plea and void his agreement not to contest his conviction for the Spencer murder.
The State has opposed the Defendant's motion to withdraw his pleas to the solicitation and conspiracy charges. It argues that the Defendant knew as well as understood what he was doing at the time he entered the pleas in question and waived his right to challenge the prior conviction. Having obtained the benefit of his plea, the State argues that the Defendant should not now be allowed to avoid his end of the bargain. That which follows is the Court's resolution of the issue so presented.
Before a defendant may enter a plea in this Court, the Court must insure that the requirements of Superior Court Criminal Rule 11 have been met. The rule requires that the Defendant understand the nature of the charges lodged against him and the applicable penalties/sentencing guidelines. He must be aware that by entering the plea he gives up certain constitutionally guaranteed rights associated with the trial of any charges against him and waives the right to a trial by jury. The Defendant must also be advised as well as understand that he is entitled to be represented by an attorney at all stages of the proceedings and if he cannot afford an attorney, one will be appointed to represent him.
Rule 11 further requires that the Court determine that the plea is voluntary, and not the result of force, coercion or promise apart from the plea agreement. A factual basis for the plea is required as well. However, guilt need not be admitted.Fromal v. State, Del. Supr., 399 A.2d 529 (1979); and Howard v. State, Del. Supr., 458 A.2d 1180 (1983). Even if a defendant has doubts, a plea may be accepted where both the State and the defendant derive some benefit from the deal.Robinson v. State, Del. Supr., 291 A.2d 279 (1972). Lastly, compliance with the rule must be established on the record.Fromal v. State, 399 A.2d at 530. See also Raison v. State, Del. Supr., 469 A.2d 424, 426 (1983).
A decision to enter a plea, once made and accepted by the Court, is not irrevocable. A defendant may do so, but only in accordance with Rule 32(d), which in relevant part reads:
Plea withdrawal. If a motion for withdrawal of a plea of guilty or nolo contendere is made before imposition or suspension of sentence . . . 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.
The burden is on the defendant to establish that he is entitled to relief. State v. Insley, Del. Supr., 141 A.2d 619 (1958); and State v. Slowe, Del. Super., C. A. No. IN93-12-0620, Cooch J. (Nov. 18, 1994) (ORDER). The timing of the motion is important as the threshold of proof is lower before sentencing as opposed to afterwards. Patterson v. State, Del. Supr., 684 A.2d 1234, 1237 (1996). Prior to the adoption of the current version of the rule in 1988, the defendant was required by the literal wording of Rule 32(d) to show that he would suffer "manifest injustice" if he were not allowed to withdraw the plea after sentencing. See also Hunt v. State, Del. Supr., No. 363, 1986, Holland, J. (June 24, 1987) (ORDER); and Smith v. State, Del. Supr., 451 A.2d 837 (1982). Notwithstanding the omission of that phrase from the rule in 1988, the showing remains the same and a defendant is entitled to relief where he can show either that the plea was involuntary or the result of mistake as to the defendant's legal rights. Winn v. State, Del. Supr., No. 257, 1993, Moore, J. (February 9, 1993); and State v. Williams, Del. Super., Cr. A. No. IN87-08-0270, Gebelein, J. (Aug. 17, 1990) (ORDER).
The decision whether to allow withdrawal of a plea is within the sound discretion of the Court and is reviewable only for an abuse of discretion. Patterson v. State; Hunt v. State and Albury v. State, Del. Supr., 551 A.2d 53 (1988). The trier of fact is the sole judge of the credibility of the witnesses and the resolution of conflicts in their testimony. Albury v. State.
Where the character of the plea is called into question because of claims of ineffective assistance of counsel, the defendant must meet the standard set forth in Strickland v. Washington, 466 U.S. 668, 694 (1984). He must first show that the representation afforded fell below an objective standard of reasonableness. If that prong is established, he must then show actual prejudice, i.e., that there is a reasonable probability that but for counsel's performance, the results would have been different. The rule in Strickland was applied to guilty pleas in Hall v. Lockhart, 474 U.S. 52, 58 (1985), which translated the second prong into proof that but for counsel's errors, the defendant would not have entered a plea, but would have elected to go to trial. See also Boughner v. State, Del. Supr., No. 480, 1994, Walsh, J. (Aug. 2, 1995) (ORDER). However, the representation afforded is accompanied by a strong presumption that counsel's conduct was professionally reasonable. Flamer v. State, Del. Supr., 585 A.2d 736, 753 (1990); and Younger v. State, Del. Supr., 580 A.2d 552, 556 (1990). A court in reviewing the plea must minimize the effects of hindsight and evaluate the conduct from the standpoint of facts existing at the time of its entry.Albury v. State, 551 A.2d at 59 to 60.
The Voluntariness of the Plea
In order to determine whether the plea was voluntary, the Court must review several factors, including, but not limited to, the circumstances existing at and around the time the plea was entered. Alston v. State, Del. Supr., 554 A.2d 304 (1989); and Howard v. State, Del. Supr., 458 A.2d 1180, 1184 to 1186 (1983). Having done so, the Court must conclude that in this context, the agreement between the State and the Defendant as well as the pleas rendered pursuant to its terms, were not involuntarily entered based upon the inability to exercise his free will.
Although much is in dispute relative to this issue, several things are clear and provide a basis upon which to resolve this issue. Not controverted are the facts that the State's plea offer was cast as "take or leave it," that it had to be accepted immediately and the only negotiation involved the inclusion of the resolution of the charges against Tracy MacDonald. Also uncontroverted are the opportunities that the Defendant had to confer with individuals other than law enforcement/or corrections staff during that rather abbreviated period of time in question. Specifically, the record reveals that the Defendant met with his attorneys on March 5 and 9 thru 11 at least once each day, was able to speak to his parents by telephone on March 10 and engaged in an extended colloquy with Judge Barron on March 11.
Furthermore, it is clear that it was the Defendant who initiated the discussions which led to the resolution of these matters with Detective Mayfield during the course of being processed after being arrested for his part in the plot against Smith. He did so prior to being placed in isolation and after being advised of his right to counsel. The State responded to his entreaties in that regard, not vice versa, and contacted the Defendant's attorneys relative to what the State would insist in return for resolving all the matters against the Defendant and his family and friends.
By the time he was arrested on March 5, the Defendant also knew that Tracy MacDonald had been arrested and he had been able to locate Foley whom he confronted about Foley's role in the failure of the plot. It is therefore unlikely that his arrest took him by surprise or that he had not already started contemplating his situation by the time he met with Detective Mayfield.
Lastly, no one disputes the physical conditions where the Defendant was housed. The isolation cell where he was held from March 5 to March 9, was small and made even less desirable by the partially opened window, the timer controlled toilet flushing and cell lighting operation along with the quarter hourly suicide checks for the first two days of his isolation cell residence. Nor is there any issue regarding the limitations on clothing and when he was allowed out of his cell.
These factors lead the Court to conclude that while the conditions of the Defendant's confinement were less than ideal, they fell short of interfering with his ability to make knowing and voluntary decisions concerning the situation he was facing. The Defendant might have appeared disheveled as well as emotional, but he was able to confer with his attorneys, review notes from that meeting and prepare to make the detailed videotaped admission concerning his participation in the Spencer murder. Moreover, it was not until after the conditions complained of ended on March 9, that he entered into the plea agreement and gave the March 10 videotaped statement. These events followed the next day by the entry of the pleas to solicitation and conspiracy charges after the colloquy with Judge Barron. Given that scenario, it is apparent that the Defendant knew the depth of the difficulties which had arisen by the time of his arrest and made a conscious as well as voluntary decision to minimize his losses.
The Defendant's exchanges with third parties on March 10 and March 11 provide further evidence of the voluntariness of his activities during the relevant period of time. He was articulate, alert, inquisitive and sometimes jocular during the course of the conference with those present and during, the videotaping that followed on March 10. He also had the presence of mind to ask for and make a telephone call to his family to explain what he was doing and that he would be lying when he admitted that he killed Julie Spencer. His answers to the questions posed by Judge Barron on March 11 were unequivocal and his statement prior to the imposition of sentence appeared to have been planned in advance given its direction and content. Plea Colloquy Tr. at 18 to 20.
Equally unpersuasive is the argument that the State coerced the Defendant into accepting the plea agreement by threatening his family with prosecution for their alleged involvement in the plot against Smith. On the surface, this has some appeal when initially evaluating the issue of voluntariness in the totality of the circumstances. A more detailed review, however, demonstrates the fallacy of this argument.
Specifically, Tracy MacDonald had been apprehended following the Defendant's instructions and admitted her complicity in the matter along with that of the Defendant's mother, Shirley MacDonald. She never recanted her admissions regarding the plot and did not attempt to raise any defense to the charges she faced prior to pleading guilty to the same. Nor did she do so in a vacuum in that she was represented by an experienced and able attorney, Joseph A. Hurley, Esquire.
In the absence of something more, the State had a legitimate basis to proceed with the prosecution of Tracy MacDonald and Shirley MacDonald as it did with Markward. The Defendant has not argued that the cases against his family members were the result of selective or vindictive prosecutions, which would be prohibited. See Albury v. State, 551 A.2d at 60 to 61. There would also be a problem if the State threatened the Defendant or his family with action that was illegal or unauthorized. Fullman v. State, Del. Supr., No. 268, 1988, Christie, C.J. (Feb. 22, 1989) (ORDER). Here, the Defendant appreciated the risk that at least these members of his family faced and made a choice. That choice was to offer himself to protect those closest to him. Under these circumstances, i.e., where a defendant pleads guilty to an offense for which there is a factual predicate in order to protect a third party similarly threatened, the Court cannot conclude the Defendant was coerced into entering the pleas in question. Rather, he had a strong incentive to accept the State's offer, and after weighing the alternatives, made his decision. United States v. Damiano, E. D. Pa., Cr. A. No. 90-488-01 (June 29, 1994). See also State v. Stewart, Del. Super., Cr. A. No. IN89-04-0807RI, Barron, J. (Mar. 2, 1990).
It should be noted as well that the Defendant indicated in his March 10 videotaped statement and in the colloquy with Judge Barron that his pleas and other admissions were not the result of force, threats or other coercion, but were knowing and voluntary. Having made those statements, he is bound by them absent clear and convincing evidence to the contrary.Hickman v. State, Del. Supr., No. 298, 1994, Veasey, C.J. (Oct. 11, 1994) (ORDER); Davis v. State, Del. Supr., No. 157, 1992, Walsh, J. (Dec. 7, 1992) (ORDER); Hughes v. State, Del. Super., Cr. A. No. IN93-07-0779, Cooch, J. (June 13, 1994) (ORDER) and State v. Morsello, Del. Super., Cr. A. No. IK91-02-0761, Barron, J. (Nov. 20, 1991) (ORDER). No such evidence has been presented. Having received the benefit of his bargain, he should not now be heard to recant in an attempt to avoid its consequences. See Downer v. State, Del. Supr., 543 A.2d 309 (1988)
Not only is there an absence of such evidence, the Defendant affirmed his complicity in the plot against Smith even after entering the solicitation and conspiracy pleas on March 11, when he testified on behalf of the defense in the Markward trial. In spite of the explanation he gave for doing so, he does not explain why he remained silent from the time his wife was sentenced until he filed the instant motion.
Ineffective Assistance of Counsel
Reduced to its most basic form, the Defendant's claim is that his attorneys mishandled his case and essentially abandoned him. According to the Defendant, they failed to investigate the charges lodged against him and any possible defenses thereto following his arrest as a participant in the plot against Smith. Nor did they advise him what he would be giving up in terms of his rights to challenge his conviction for the Spencer murder and did not get him more time to consider the State's offer.
In March 1993, the Defendant was twenty-five years old and employed as a truck driver for a construction firm. He was married and had one child who was four months old. A high school diploma and nine college credits constituted the extent of his education. The Defendant had some contact with the criminal justice system as a juvenile and as an adult, but it was minor.
According to the Defendant, his contact with the law consisted of what might be considered charges for receiving stolen property, criminal trespass and carrying a concealed deadly weapon (a pocket knife). Exactly how they were disposed of is unclear, but his first significant contact with the law was his arrest for the murder of Julie Spencer.
As indicated above, Gabay and Capone disputed both the Defendant's version of the relevant facts and the conclusions he drew as to the quality of the representation afforded. When their representation of the Defendant began, Gabay had been a member of the Delaware Bar for fourteen years and Capone for eighteen years. Nor was their representation of the Defendant the first murder trial for either.
At that point in his career, Gabay had participated in approximately thirty capital and noncapital murder cases. Capone had participated in about half that number.
The question of whether the Defendant established the first prong of the Strickland test turns in substantial part upon who has offered the more credible testimony relative to this issue, the Defendant or his former attorneys. At that point, the conduct itself can then be viewed and the issue resolved.
Unfortunately for the Defendant, his version of the events about which there is a dispute, given the record, cannot be accepted. The Defendant's attorneys had no reason to misrepresent what took place. The Defendant did. If the Defendant were to be believed now, he lied when he gave his videotaped statement, lied during the course of his colloquy with Judge Barron and lied at the Markward trial. His stated goal was to protect his family which legitimately appeared to be in some legal peril following the discovery of the plot against Smith. And, he did exactly that before finally coming forward with his latest version of what really happened. Given these facts, the Court can and does find that the version of events proffered by Gabay and Capone was more likely to have occurred. Consequently, whether the representation afforded was professionally reasonable under the circumstances must be determined from their perspective where there is disagreement in this regard.
Again, the Defendant's counsel were confronted with evidence of a plot to at least physically confront a witness and manipulate his testimony. They had a client who had his mind made up before consulting with them and initiated plea discussions with the State. Their client was more intelligent than their average client and had some education beyond high school. After reaffirming the Defendant's intentions, they assisted the Defendant in carrying out his end of the bargain, but only after explaining his options and the dire consequences of whatever choice he made, including life in prison without any right to challenge that sentence. They did not control the time limits placed by the State on responding to its offer or the content of that offer. And, the Defendant knew that he could have simply said "No, I want to go to trial."
This conduct was professionally reasonable under the circumstances that existed at the time the Defendant entered his pleas on March 11. The focus shifted after their meeting on March 9 from what happened to carrying out the Defendant's desire to resolve all matters that were or might be pending against him and his family. To continue to investigate what happened at this point given the constraints under which they were operating, would have served no purpose. While counsel could in all likelihood have done more in the best of all possible worlds, their conduct did not fall below that required by the first prong of Strickland.
Assuming arguendo that he did meet his burden of establishing that the representation provided was professionally unreasonable, the Defendant had to establish the second prong of Strickland, that is, that but for the deficient conduct of his attorneys, he would have rejected the State's offer and elected to go to trial. He has not done so.
First of all, and again, the Defendant's stated purpose in accepting the State's offer was to protect his family from criminal prosecution. Second, they would have continued to be at risk if the Defendant had been presented with some basis to contest the solicitation and conspiracy charges. Third, the Defendant has failed to state what, under the circumstances, would have changed his mind. The Defendant didn't deny that he knew what was going on in connection with the plot against Smith and that he knew he could spend the rest of his life in jail. However, he chose to protect those closest to him. In light of his level of concern for and the lengths he went to protect his family, the Court cannot conclude that the Defendant would have rejected the plea offer and elected to go to trial absent the deficient performance of his counsel.
Although the Defendant argues that more should have been done or that other options might have been available had counsel tried harder, he does not specify exactly what more there was to do or what those other options were. Interestingly enough, neither Hurley, Tracy MacDonald's attorney or Anthony A. Figliola, Esquire, Markward's trial attorney, even attempted to challenge or contest the actions taken in response to the information brought to the State by Foley. Obviously both had more time than Gabay and Capone to investigate. what happened and prepare any existing defenses.
It is readily apparent from the foregoing that the Defendant has failed to establish that the representation afforded by his attorneys were ineffective based upon the dictates set forth in Strickland and its progeny. Consequently, he is unable to prove that his pleas on March 11 were knowingly and voluntarily based upon the misfeasance or nonfeasance of his attorneys. No other conclusion is viable under the circumstances.
CONCLUSION
The record before the Court conclusively establishes that the pleas entered by the Defendant on March 11, 1993, were voluntary and knowing. He received competent as well as professionally reasonable legal representation. There was also a factual basis upon which their entry was legitimately premised and the Defendant did not enter them or the agreement with the State under any mistake as to his legal right or options. The Defendant's petition to withdraw the pleas so entered must be, and hereby is, denied.
IT IS SO ORDERED.