Opinion
I.D. No. 9905019691
Submitted: March 25, 2001
Decided: April 5, 2001
UPON DEFENDANT'S MOTION TO WITHDRAW GUILTY PLEA. DENIED.
Daniel R. Miller, Natalie S. Woloshin, Deputy Attorneys General, Attorneys for the State.
Caroline P. Ayres, Attorney for Defendant.
ORDER
This 5th day of April, 2001, upon review of the papers filed by the parties and the record in this case, it appears that:
(1) On October 16, 1999, Defendant, Warren McNeill was arrested and subsequently charged with Attempted Murder First Degree, Attempted Assault First Degree, eight counts of Possession of a Firearm During the Commission of a Felony (PFDCF), four counts of Reckless Endangering First Degree, two counts of Aggravated Menacing, two counts of Possession of a Deadly Weapon by a Person Prohibited, and two counts of Possession of a Deadly Weapon or Ammunition by a Person Prohibited.
(2) On November 22, 2000, Defendant accepted a guilty plea offer by the State, which specified that Defendant would plead guilty to Attempted Assault First Degree, PFDCF, and Reckless Endangering First Degree. The State specified that it would seek a sentence of no less than ten years incarceration at Level 5. The remainder of the charges were to be nolle prossed. On the same date, the Court accepted Defendant's guilty plea and — ordered a presentence investigation. During the guilty plea proceedings, David J. Facciolo, Esq. represented Defendant.
(3) Defendant has now filed a motion to withdraw his guilty plea. Superior Court Criminal Rule 32(d) permits the Court, prior to sentencing, to allow a defendant to withdraw his plea of guilty upon a showing by the defendant of "any fair and just reason." Permission to withdraw a plea prior to sentencing is within the sound discretion of the trial court. Brown v. State, Del. Supr., 250 A.2d 503, 504 (1969).
(4) In reviewing such a motion, the Court should make the following inquiries: whether there was a procedural defect in taking the plea; whether the defendant knowingly and voluntarily consent to the plea agreement; whether the defendant has a basis to assert legal innocence; whether the defendant had adequate legal counsel throughout the proceedings; and whether granting the motion would prejudice the State or unduly inconvenience the Court. State v. Friend, Del. Super., Cr. A. No. IN93-08-0361, Carpenter, J., (May 12, 1994), Order at 3, aff'd, Del. Supr., No. 75, 1996, Walsh, J. (ORDER) (citations omitted).
(5) In his motion, Defendant makes several allegations regarding the events surrounding the entry of his plea, most of which can be categorized as claims of ineffective assistance by Facciolo or as claims that Defendant did not enter into the plea knowingly or voluntarily. Defendant also alleges what can be termed as procedural defects surrounding the plea.
(6) Initially, Defendant claims that the guilty plea form incorrectly sets forth the statutory penalty for PFDCF, which would constitute a procedural defect surrounding the taking of Defendant's plea. After reviewing the Truth-in-Sentencing guilty plea form Defendant signed, the Court has determined that the guilty plea form correctly sets forth the statutory penalty for PFDCF. Eleven Del. C. § 1447A(a) classifies PFDCF as a Class B felony, which carries a penalty of two to twenty years Level 5 incarceration. 11 Del. C. § 4205(b)(2). However, 11 Del. C. § 1447A(b) specifies that a person with fewer than two prior felony convictions who is convicted of PFDCF "shall receive a minimum sentence of 3 years at Level V." The guilty plea form signed by Defendant sets forth the statutory penalty for PFDCF as three to twenty years at Level 5, which is correct. The plea agreement also specifies that there is a minimum mandatory penalty of three years at Level 5. The Court correctly stated during the plea colloquy that the penalty for PFDCF was "up to 20 years, with a minimum mandatory of three years." As a result, the Court finds that there were no procedural defects surrounding the plea agreement.
(7) The Court must next determines whether Defendant knowingly and voluntarily consented to the plea agreement. Defendant claims that he was confused about the plea and did not understand the potential penalties he faced or that he was waiving all of his constitutional rights by taking the plea. In addition, Defendant claims that he was "under stress" at the time of the plea and suffers from dyslexia.
(8) On the guilty plea form, Defendant indicated that he freely and voluntarily decided to plead guilty to the charges listed in the plea agreement and that no one had threatened or forced him to enter into the plea agreement. The guilty plea form also clearly sets forth the crimes to which Defendant pleaded guilty and the statutory penalty and is sentencing guidelines for each of those offenses. As stated above, the form sets forth that there is a three year minimum penalty. Defendant indicated that he understood, by pleading guilty, that he was waiving the constitutional rights listed on the guilty plea form.
(9) In addition, the record in this case shows that the Court engaged in an extensive and careful plea colloquy with Defendant before finally accepting his guilty plea. Defendant's counsel initially indicated that Defendant refused to take the plea offer. The Court, specifically stating that it was not attempting to get Defendant to accept or reject the plea, explained that the proposed plea required a three year minimum mandatory sentence, although Defendant could be subject to a greater sentence in the Court's discretion and that the State could argue for a longer sentence. The Court then explained that if Defendant went to trial and was convicted, he faced a minimum mandatory sentence of fifteen years Level 5 incarceration. Defendant then requested to talk to his attorney again, which the Court permitted.
(10) After speaking to his attorney again, Defendant decided to accept the plea. The Court asked Defendant whether he had read, understood and signed the plea agreement and guilty plea form. Defendant responded, "I read it, I comprehend it to the best of my ability." Facciolo explained that Defendant had allowed Facciolo to fill out the boxes on the guilty plea form because Defendant was dyslexic. Facciolo stated that he and Defendant had gone over the items on the form together one by one.
(11) Defendant then stated that he had signed the guilty plea form and plea agreement but did not understand "all the gibberish about the sentencing and guidelines and stuff." The Court again allowed Defendant to confer with Facciolo. After speaking with Defendant off the record again, Facciolo stated that he had explained to Defendant what the Truth in Sentencing guidelines meant and what the guideline was for each of the offenses, that he had explained to Defendant that he faced up to thirty-five years at Level 5, and that Defendant would have to serve a three year minimum mandatory sentence. Defendant agreed that he understood the explanation given to him by Facciolo and understood all of the questions and provisions on the plea agreement and guilty plea form.
(12) Defendant stated that he was entering into the plea freely and voluntarily, that no one had threatened or promised him anything to get him to plead guilty, and that no one had promised him what the sentence of the Court would be. Defendant indicated that he understood he was giving up his trial rights.
Specifically, the trial transcript states, in pertinent part:
THE COURT: Mr. McNeill, now, with that explanation being made to you by your attorney, do you now fully understand all of the elements, all of the questions, all of the provisions on the plea agreement and the guilty plea form?
THE DEFENDANT: Yes.
THE COURT: Have you had any drugs or alcohol in the last 24 hours?
THE DEFENDANT: No.
THE COURT: Are you doing this freely and voluntarily?
THE DEFENDANT: Yes.
THE COURT: Nobody threatened you or promised you anything in order to get you to do this?
THE DEFENDANT: No.
THE COURT: Nobody promised you what the sentence of the Court was going to be?
THE DEFENDANT: No.
THE COURT: You do understand that you could plead not guilty and have a full trial, be presumed innocent, have your attorney represent you, and make the State prove the charges against you beyond a reasonable doubt. Do you understand that you have that option?
THE DEFENDANT: Yes.
THE COURT: On the guilty plea form, there are a whole series of trial rights. Do you understand that by entering this plea, you are giving up all those rights?
THE DEFENDANT: Yes.
(13) Defendant admitted to the commission of the elements of each offense to which he had pleaded guilty. The Court went over the statutory range of possible sentences for each offense and again asked if Defendant understood that there was a minimum sentence of three years for PFDCF and that he could possibly serve up to thirty-five years incarceration. Defendant indicated that he understood.
(14) Finally, the Court asked if Defendant was satisfied that he had had enough time to go over the plea carefully with his attorney. When Defendant responded, "no," the Court again indicated that it would not accept the plea. Again, Defendant was permitted to confer with Facciolo. After again speaking with Defendant, Facciolo explained that Defendant referred to a continuance request that had not been granted when he stated that he had not had time to go over the plea. Defendant then indicated that he was satisfied with his attorney's advice and representation. Finally, the Court asked, "As a result of the discussion with your attorney, have you taken enough time and consideration so that you think you are fully informed and that you are satisfied with everything that your attorney has done and explained to you in this case?" Defendant responded, "Yes." It was only at this point that the Court entered its finding that the plea was knowingly and voluntarily entered.
(15) After careful review of the plea colloquy and documents supporting Defendant's guilty plea, the Court finds that Defendant knowingly and voluntarily consented to the plea agreement.
(16) The Court next must consider whether Defendant has a basis to assert legal innocence. Apparently in support of this argument, Defendant states that, "little discovery was made in the case, and identification evidence alleged to prove Defendant's guilt is just a mystery." Defendant attaches as exhibits to the memorandum several documents which are apparently part of Defendant's file. These documents include correspondence between Facciolo and the State regarding discovery and Defendant's "RAP sheet." These documents are not part of the record before the Court, nor does Defendant explain further how they support his argument. Therefore, the Court will not consider them further.
(17) Defendant admitted to the offenses to which he pleaded guilty during the plea colloquy. After admitting to an offense at the time of the plea, a defendant cannot later assert innocence in the absence of some other support. Russell v. State, Del. Supr., No. 509, 1998, Veasey, J., (June 2, 1999), Order at 6. Aside from the documents mentioned above, Defendant has not provided any other support in support of his innocence. As a result, the Court cannot find that Defendant has a basis to assert legal innocence.
(18) Next, the Court must determine whether Defendant had adequate legal counsel throughout the proceedings. Defendant argues that Facciolo's representation during the guilty plea proceedings was not adequate. Specifically, Defendant alleges that Facciolo told him "not to listen to anything the judge had to say, and just say 'yes' to everything" and that Facciolo counseled him to change his testimony. Also, Defendant argues that Facciolo did not explain to him that he was waiving his constitutional right to trial and to appeal. Defendant states that it is "important to note" that Facciolo, not Defendant, physically checked off the boxes on the guilty plea form.
(19) Again, upon review of the record in this case, the Court finds no evidence to support Defendant's allegations. The record shows that Facciolo indicated to the Court initially that Defendant did not wish to accept the plea. Defendant, not his attorney, then decided that he wished to reconsider his decision. The record shows that Facciolo spent a considerable amount of time going over all of the issues involved in the plea with Defendant. Facciolo stated that he had gone over the forms with Defendant in detail and explained the potential penalties Defendant faced if he chose to go to trial. There is no evidence in the record to show that Facciolo forced Defendant to accept the plea or talked him into changing his mind. Although Facciolo acknowledges that he checked off the boxes on the guilty plea form on behalf of Defendant, he did so because Defendant claims to be dyslexic. Facciolo stressed that he had carefully gone over each item with Defendant before checking off the box.
(20) Finally, the Court will consider whether the State would be prejudiced or the Court would be unduly inconvenienced if Defendant were permitted to withdraw his guilty plea. Defendant makes no argument as to this factor. The Court notes that, at the time of the plea, the State explained that it had entered into the plea agreement with Defendant at the request of the victims in the case who did not want to go to trial because they were frightened. However, the State also asserted that it was ready to go to trial on the scheduled date, November 28, 2000. The State reiterated later, "I'm ready to go to trial [on November 28]. I have all the witnesses that I need. Everyone is ready to go. . . ."
(21) In its memorandum in opposition to Defendant's motion to withdraw his guilty plea, the State now argues that to allow Defendant to withdraw his plea would prejudice the State due to the victims' fear of testifying and because the State would now have to again contact and secure its witnesses if another trial date is scheduled. The Court finds that, despite the State's insistence at the guilty proceedings that it was ready to try the case the following week, the passage of an additional three months from the time Defendant entered his plea until Defendant filed his motion to withdraw the plea would have a prejudicial effect on the State's ability to try the case.
Therefore, as a result of the foregoing reasons, Defendant's Motion to Withdraw Guilty Plea is hereby DENIED.
IT IS SO ORDERED.