Opinion
I.D. No. 0902004267.
Submitted: May 18, 2010.
Decided: June 15, 2010.
On Defendant's Motion to Withdraw Guilty Plea. DENIED.
Daniel B. McBride, Esquire, Deputy Attorney General, Department of Justice, Wilmington, Delaware, Attorney for the State.
Ivis McGriff, H.R.Y.C.I, Wilmington, Delaware, Pro Se.
Dear Mr. McBride and Mr. McGriff:
On March 2, 2010, Defendant entered a guilty plea to charges of Exploitation of an Infirm Adult and Theft of a Senior. Defendant has now filed a motion to withdraw his guilty plea alleging that (1) he was provided ineffective assistance of counsel because no suppression motion was presented on his behalf, (2) "no arrest . . . [or] search warrant was presented[,]" and (3) his confession was "coerced" because counsel "instilled in me repeatedly that I would probably receive 3 times as much time as I took a plea for."
Mot. to Withdraw Guilty Plea at 3.
Defendant's motion to withdraw his guilty plea is controlled by Superior Court Criminal Rule 32(d). The 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 the factors, this 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, Defendant's allegation that he was not properly represented fails to meet the burden of proof required by Strickland v. Washington.
466 U.S. 668 (1984).
This Court notes that Defendant was initially hesitant and evasive in connection with the entering the plea. Thus, this Court gave Defendant an extended opportunity to discuss the plea offer with his attorney and to determine whether he wanted to accept the plea.
THE COURT: All right. Thank you. Mr. McGriff, please stand.
Did you hear everything that the prosecutor, Mr. McBride, said and your attorney, Mr. Veith, just said.
HE DEFENDANT: Yes.
THE COURT: It's been described, and you heard the summary of the plea offer. It's not a summary. It's a description of all of it. The State has offered that if you plead guilty to Exploitation of An Infirm Adult, Count 5, and also to Count 6, Theft of a Victim Over Age 62, the State will nolle pros all other exploitation and theft charges. They've already nolle prossed the robbery and burglary and carjacking and kidnapping charges. So those are no longer in the case.
But do you understand that this is your opportunity, if you wish to accept it, to accept the State's plea offer?
THE DEFENDANT: Okay. I'd like to discuss a matter with my attorney before I deny it. I want to make sure that he's going to raise the questions that need to be raised, you know, ask the questions that need to be asked because nobody in over a year has presented any evidence against me.
THE COURT: Well, I'm going to allow you a brief time to confer with
Mr. Veith.
MR. VEITH: Thank you, Your Honor.
THE COURT: But I've read though the file and we're not going to go through, because we're waiting for a jury to be picked at any minute, whatever history you may have of unhappiness or wishing Mr. Veith had filed this motion or that motion or done other strategy.
Mr. Veith, you're prepared for trial today I understand? MR. VEITH: Yes, Your Honor. I am.
THE COURT: I'll allow you discussion, I'll stay on the bench and put on the white noise machine, with him solely on the question of whether or not you wish to accept the State's plea offer or not. And before you do that, I'll just say this. I'm making a record of this because if you should be convicted of all the offenses, I'm not saying you will be, but if you should be, then it will be too late for you to come back at some later time and say I really did intend to take the — want to take the State's plea offer on the day of trial, but was somehow prohibited from doing so. Do you understand that?
THE DEFENDANT: Somewhat, Somewhat I understand it.
Tr. of March 2, 2010 Plea Hearing 19-21.
After conferring with counsel, the Court made sure Defendant was competent to enter the plea.
THE COURT: Thank you. Before I do address Mr. McGriff directly, to Mr. Veith. I've read the report from the Delaware Psychiatric Center, and I just wanted to hear a little bit further. Are you satisfied from all of your contacts with Mr. McGriff that he is, in fact, competent to enter this plea?
MR. VEITH: Absolutely, Your Honor. There was — back when I asked that test be performed, that examination, I just had some concerns and that examination came back. I read it, and that alleviated any concerns I had.
Id. at 26-27.
The Court then began to question Defendant as to whether he wished to accept the State's plea offer, but Defendant's answers were still evasive, and Defendant told the Court of his belief that the State had no evidence against him.
THE COURT: Thanks.
Are you Ivis McGriff?
THE DEFENDANT: Yes, sir. I am.
THE COURT: Do I understand you were a patient in a mental hospital at one point around 1996?
THE DEFENDANT: Yes, sir.
THE COURT: And what was that — what was your reason for being in a mental hospital then?
THE DEFENDANT: Abuse of alcohol.
THE COURT: What was the diagnosis, if you remember?
THE DEFENDANT: It's been so long, I just was there for treatment.
THE COURT: All right. Thank you. Are you under the influence of alcohol or drugs at this time, even prescription drugs?
THE DEFENDANT: No.
THE COURT: Have you freely and voluntarily decided to plead guilty to the charges listed in your plea agreement?
THE DEFENDANT: Yes, sir.
THE COURT: Have you been promised anything that is not stated in your written plea agreement?
THE DEFENDANT: No, sir.
THE COURT: Has your lawyer, the State, or anyone threatened or forced you to enter this plea?
THE DEFENDANT: No, sir.
THE COURT: 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?
THE DEFENDANT: Yes, sir. I do.
THE COURT: Do you understand that those constitutional rights include the following: one, to have a lawyer represent you at trial?
THE DEFENDANT: Yes.
THE COURT: Two, to be presumed innocent until the State can prove each and every part of the charges against you beyond a reasonable doubt?
THE DEFENDANT: No, I didn't even pay attention to that.
* * *
THE COURT: Did you discuss with [Mr. Veith] your right to be presumed innocent until the State can prove each and every part of the charges against you beyond a reasonable doubt?
THE DEFENDANT: Well, he never stated anything about they could find me guilty, you know, or anything like that he didn't say.
MR. VEITH: Well, maybe, Mr. McGriff, I just didn't — I didn't say it quite as well as on the form. I did advise him that if he went to trial, it would be up to the jury to decide whether he's guilty of these offenses. Maybe I did not say beyond a reasonable doubt, but that's the standard. I think we've gone through this form twice.
* * *
THE DEFENDANT: Yeah, I understand that if they present something against me, but nobody has.
MR. VEITH: Just one moment.
THE COURT: I'll let you speak, but, of course, the trial hasn't even begun right now. Has your attorney discussed with you what the State's evidence is likely to be in this case?
THE DEFENDANT: No, he hasn't. He hasn't said that they presented any evidence against me.
Thereafter, the Court asked the Deputy Attorney General to recount the evidence against Defendant. The Deputy Attorney General did so, and at some length. After hearing the evidence against him, Defendant decided to accept the plea offer, and this Court conducted a particularly thorough plea colloquy. The pertinent parts are as follows:
MR. VEITH: Your Honor can proceed, but I don't think I'm getting through to Mr. McGriff. I've explained the standard to him. He wants — no one has physically presented him with, I guess, evidence that he is guilty of the crimes. I've provided him with all of the police reports and all of the statements. I've explained the circumstantial nature of this case, and that if he wants to take this plea, he is essentially waiving his right to have that evidence that the State submits they will use to prove his guilt beyond a reasonable doubt to a jury. I don't know if he's hung up on the semantics or what the issue is here.
THE COURT: I think I will do this. I see no reason why I couldn't ask the State, Mr. McBride, to summarize the evidence —
* * *
MR. VEITH: Your Honor, he advises me that he's ready. He's read the form, the eight questions again about his constitutional rights. I did show him the surveillance photographs. He's ready to go forward he says with the plea.
THE COURT: All right. Thank you. I'm going to go back just a little bit in the plea colloquy to start off with the constitutional rights. 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?
THE DEFENDANT: Yes.
THE COURT: Do you understand those rights include the following: one, to have a lawyer represent you at trial?
THE DEFENDANT: Yes.
THE COURT: Two, and before I ask the question, did you hear everything that the prosecutor, Mr. McBride, just put on the record?
THE DEFENDANT: Yes.
THE COURT: Do you understand that you also waive up your constitutional right to be presumed innocent until the State can prove each and every part of the charges against you beyond a reasonable doubt?
THE DEFENDANT: Yes.
THE COURT: Three, to a speedy and public trial by a jury?
THE DEFENDANT: Yes.
THE COURT: Four, to hear and question the witnesses against you.
THE DEFENDANT: Yes.
THE COURT: Next, to present evidence in your defense?
THE DEFENDANT: Yes.
THE COURT: Next, to testify or not to testify yourself?
THE DEFENDANT: Yes.
THE COURT: And to appeal, if convicted, to the Delaware Supreme Court with the assistance of a lawyer?
THE DEFENDANT: Yes.
* * *
THE COURT: Have you read and understood all of the information on this form.
THE DEFENDANT: Yes, I have.
THE COURT: Are all of your answers truthful?
THE DEFENDANT: Yes, they are.
THE COURT: Is this your signature at the bottom of the guilty plea?
THE DEFENDANT: Yes, it is.
* * *
THE COURT: Do you believe that you are knowingly, voluntarily, and intelligently entering a plea of guilty to these two charges?
THE DEFENDANT: Yes, sir.
THE COURT: Do you understand that what's being done today is final, meaning you will not be able to come back at any later time after today and seek to vacate or reopen your guilty plea to these two charges?
What's being done today is final in that regard. Do you understand that?
THE DEFENDANT: Yes, sir. I do.
THE COURT: Do you believe that you are knowingly, voluntarily, and intelligently entering a plea of guilty to these charges?
THE DEFENDANT: Yes, sir.
Defendant stated on the record that he understood his rights and understood that the guilty plea was final. Defendant has failed to present any "fair and just reason" as to why he should be permitted to withdraw his guilty 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 the merits of Defendant's allegations that he was improperly represented by counsel or that counsel failed to file certain motions. Under Strickland, Defendant bears the burden of proof in showing 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. Allegations that are entirely conclusory are legally insufficient to prove ineffective assistance of counsel; the 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 that counsel's performance fell below an objective standard of reasonableness. Although Defendant alleges that he was "coerced" into accepting the guilty plea, Defendant's statements on the record contradict this assertion. 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." 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, June 18, 2010 at 1:15 before the undersigned judge. Immediately prior to sentencing, this Court will determine whether Defendant wishes to represent himself at the sentencing, or to have Mr. Veith represent him.
State v. Drummond, 2002 WL 524283 (Del. Super.).
IT IS SO ORDERED.