Opinion
ID No. 0510018955.
Submitted: December 20, 2006.
Decided: January 3, 2007.
On Defendant's Motion to Withdraw Guilty Plea.
DENIED.
ORDER
The defendant has filed a motion to withdraw the guilty plea he entered on July 13, 2006, the date set for the trial of the charges against him. Upon review of the motion it appears that:
1. The defendant was indicted in the Superior Court on January 26, 2006, on six counts: Reckless Endangering First Degree (2 counts, differentiated by the fact that there were two victims), Possession of a Firearm during the Commission of a Felony, Conspiracy Second Degree, Possession of a Firearm by a Person Prohibited, and Possession of a Deadly Weapon by a Person Prohibited. He posted bail and was released from custody on February 10, 2006.
2. At the final case review on June 19, 2006, the defendant was offered a plea to one count of Reckless Endangering First Degree and Possession of a Deadly Weapon by a Person Prohibited. He rejected that offer and elected to proceed to trial. On the date set for trial, he chose to accept a slightly increased plea offer rather than proceed to trial. The plea offered by the State and accepted by the defendant was one count of Reckless Endangering First Degree, Conspiracy Second Degree, and Possession of a Deadly Weapon by a Person Prohibited. Sentencing was deferred to November 3, 2006. Because there was no mandatory time associated with the plea, the defendant remained at liberty.
3. On the day of the sentencing, November 3, 2006, the defendant expressed the desire to file a motion to withdraw his guilty plea. The sentencing was deferred so the motion could be presented. The defendant's counsel, David Facciolo, filed a motion in support of the defendant's desires on December 19, 2006. The motion recites the fact that the guilty plea form incorrectly said that the Truth in Sentencing guideline for Reckless Endangering First Degree is 0-15 months which differed from the guideline recited in the presentence report, 0-30 months. The reason for the greater guideline range for sentencing was the defendant's juvenile record. The essence of the motion is found in paragraph 3 which says:
3. On or about the time of sentencing on November 2 (sic), 2006, Counsel reviewed the presentence report's salient factors with the defendant and was permitted to discuss the case generally with the defendant's parents who were with him in court. It became clear that the defendant he (sic) did not feel that he was adequately informed of his trial options and felt "undue pressure" to enter the plea which entailed potentially high penalties.
4. Superior Court Criminal Rule 32 provides that if a motion for withdrawal of a plea of guilt is made prior to sentencing, "the court may permit withdrawal of the plea 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.
State v. Adkins, 2005 WL1384307 (citing State v. Insley, 141 A.2d 619, 622, (Del. 1958)).
5. A review of the transcript of the plea colloquy reveals that the defendant had no trouble answering the questions of the Court. He said that he had read, discussed with his attorney, understood, and signed the plea agreement and the guilty plea form. The specific charges were reviewed with him, which necessarily involved a discussion of the fact that he had prior criminal convictions as a juvenile, as the juvenile conviction of Burglary Second Degree formed the basis for the Person Prohibited charge. The defendant was asked if he had any questions of the Court or his attorney, and he said he did not. I found the plea to be entered knowingly, intelligently, and voluntarily. There is nothing in the record to suggest that the defendant — a person with prior experience in the criminal justice system as a juvenile — had any difficulty understanding the nature of the plea he was entering. The fact that there may be a discrepancy in the announced guideline of 0-30 months, instead of 0-15 months on the Reckless Endangering charge does not effect substantial rights. The defendant must be informed as to the maximum penalty; guidelines are for the courts consideration. They are not binding. The maximum possible penalty was correctly stated, and that is what controls.
Super. Ct. Crim. R. 11(c)(1), Super. Ct. Crim. R. 11(h).
6. The defendant has not demonstrated any fair and just reason for withdrawal of the guilty plea. He had the benefit of the case review process. He waited until the day of trial to accept a plea. He understood that the case would proceed to trial if the plea was not entered. The plea in this Court was not the first time he had experience in the criminal justice system. The transcript does not reflect any indecision. It demonstrates only that there was once thought to be mandatory time associated with the Reckless Endangering First charge, then by the time of trial the defendant was informed that there was no mandatory time. I see no factual basis, other than the preference of the defendant to avoid the imposition of sentence, to permit withdrawal of the plea. A mere assertion by a defendant through a motion of counsel, after the entry of a plea, that he did not understand his legal rights, is not sufficient to allow the guilty plea to be withdrawn.
State v. Brown, 2004 WL 2240161 (Del.Super.).
WHEREFORE, the motion to withdraw the guilty plea is DENIED. The matter shall proceed to sentencing on January 5, 2007.
IT IS SO ORDERED.