Opinion
I.D. No. 0404021140.
Submitted: April 1, 2005.
Decided: May 18, 2005.
Upon Defendant's Motion to Withdraw Guilty Plea. Denied.
Dennis Kelleher, Esquire, Department of Justice, Dover, Delaware; attorneys for the State of Delaware.
Joseph A. Giordano, Esquire, Dover, Delaware; attorney for the Defendant.
ORDER
Upon consideration of Defendant's Motion to Withdraw his Guilty Plea and the record before this Court, it appears to the Court:
On April 29, 2004, Anthony Adkins ("Defendant") was charged with Attempted Murder 1st, Possession of a Firearm during the Commission of a Felony, Possession of a Deadly Weapon by a Person Prohibited and Carrying a Concealed Deadly Weapon. On November 8, 2004, Defendant pled guilty to Assault 1st and the remaining charges against him were dismissed. On January 12, 2005, Defendant, prior to being sentenced, indicated that he desired to withdraw his guilty plea. This Court appointed counsel to Defendant and deferred sentencing until his motion to withdraw was presented and adjudicated.
The determination of whether to permit a defendant to withdraw his guilty plea is reserved to the sound discretion of the trial court. Pursuant to Superior Court Criminal Rule 32(d), this Court may permit a defendant to withdraw his guilty plea prior to sentencing "upon a showing by the defendant of any fair and just reason." The defendant has the burden of establishing that he either entered the plea agreement involuntarily or entered the agreement because he misapprehended or misunderstood his legal rights. In determining whether the defendant has provided a fair and just reason, this Court should make the following inquiries:
Brown v. State, 250 A.2d 503, 504 (Del. 1969).
Super. Ct. Crim. R. 32.
State v. Insley, 141 A.2d 619, 622 (Del. 1958).
i. was there a procedural defect in taking the plea;
ii. did the defendant knowingly and voluntarily consent to the plea agreement;
iii. does the defendant have a basis to assert legal innocence;
iv. did the defendant have adequate legal counsel throughout the proceedings; and
v. does granting the motion prejudice the State or unduly inconvenience the Court?
State v. Friend, 1994 Del. Super. LEXIS 229, at *4.
Defendant contends that he was never informed the sentence that could be imposed upon him could be up to twenty years incarceration. Defendant alleges that he did not personally check off the questions on the Truth-In-Sentencing Form nor did his attorney read such questions to him. Because he was uninformed of the potential maximum sentence that could be imposed, Defendant contends that he did not knowingly and voluntarily enter into the plea agreement and a procedural defect therefore existed in taking a plea. Although unawareness of the contents of a plea agreement may provide a fair and just reason to allow a defendant to withdraw his guilty plea, this Court finds that Defendant's contentions and unsubstantiated allegations of ignorance are without merit and unequivocally refuted by the record.
The Truth-In-Sentencing Guilty Plea Form which Defendant signed states that a maximum sentence of twenty years can be imposed. The plea colloquy refutes Defendant's assertion that he was unaware of the contents of the Truth-In-Sentencing Form and further supports a finding that Defendant was informed of the potential sentence.
Ms. Dean: I want to make mention of the question that says: Were you on probation or parole at the time of this offense? At the time of the offense, there was a violation pending. So the answer is: He was on paper technically on probation, but not being supervised; and We thought We should clarify that. He wanted me to clarify that, so that's why I wrote that in there. . . .
Court: Did you review the questions for which the blocks were to be checked off by your attorney and then you instructed her what your answer was and, then, did she check them off correctly?
Tr. of Plea Colloquy Proc. ( hereinafter "Tr.") at 3, lines 9-17.
Court: Has your attorney fully advised you of your rights pertaining to your plea?
Tr. at 8, lines 18-23.
Tr. at 10, lines 21-23.
This Court and Defendant also examined the Truth-In-Sentencing Form and Guilty Plea Form in detail during the plea colloquy. The plea colloquy confirms that Defendant was fully informed the sentence imposed upon him could be up to 20 years incarceration:
Ms. Dean: I've explained to him that there is a two-year minimum mandatory sentence and that there is a maximum possible statutory sentence of up to 20 years, so he understands the sentence range. I have explained to him the sentencing guideline, and I've told him that the Judge can give him more or less than the sentencing guideline, that it is a guideline.
Court: It carries a maximum potential penalty for you of up to two years — two years — 20 years, with a minimum statutory penalty of up to two years; do you understand that?
Tr. at 2-3, lines 20-23 1-4.
Tr. at 8, lines 2-7.
Defendant acknowledges that the plea colloquy contradicts his assertions but contends that he was simply answering the questions during the colloquy without listening to the actual questions being posed. The plea colloquy again refutes Defendant's assertions. This was not a plea colloquy where Defendant answered each question in the affirmative; rather, Defendant was required to answer some questions in the affirmative and others in the negative which he successfully did. Moreover, when Defendant did not understand a particular question he stated "Excuse me, sir?" The various and proper responses made by Defendant are evidence that he comprehended and understood the questions posed and statements made during the plea colloquy.
Tr. at 10, line 6.
This Court finds that Defendant had adequate legal counsel throughout the proceedings and knowingly and voluntarily entered into the plea agreement. Defendant is bound by his answers given on the Truth-In-Sentencing Form and during the plea colloquy absent clear and convincing evidence to the contrary. Defendant has failed to provide such evidence. The plea agreement, the Truth-In-Sentencing Form and the Plea Colloquy refute Defendant's contention that he was unaware that a twenty year sentence could be imposed. This Court also finds that no procedural defect existed in taking the plea agreement nor has Defendant asserted a basis for legal innocence. Defendant instead has argued only that he should have been charged with Assault 1st initially rather than having to plea down to such offense. Defendant's discontentment with the plea agreement does not provide this Court with a fair and just reason to permit Defendant to withdraw his guilty plea. In short, Defendant has not established that he entered the plea agreement involuntarily or entered the plea agreement because he misapprehended or misunderstood his legal rights. Accordingly, Defendant's motion to withdraw his guilty plea is hereby denied.
State v. Smith, 1997 Del. Super. LEXIS 534, at *4.
IT IS SO ORDERED.