Opinion
I.D. Nos. 9812009411, 9903001654.
Submitted: February 12, 2001.
Decided: February 26, 2001.
UPON DEFENDANT'S MOTION TO WITHDRAW GUILTY PLEA. DENIED.
Donald R. Roberts, Deputy Attorney General, Wilmington, Delaware, Attorney for the State.
Robert M. Goff, Assistant Public Defender, Wilmington, Delaware, Attorney for Defendant.
ORDER
This 26th day of February, 2001, upon review of the papers filed by the parties and the record in this case, it appears that:
(1) In February 1999, the Grand Jury indicated Defendant, Edward Rodriguez, charging Defendant with multiple counts of Rape First Degree, Unlawful Sexual Intercourse First Degree, and one count of Continuous Sexual Abuse of a Child. In March 1999, the Grand Jury re-indicted Defendant on a total of twenty-four counts of Rape First Degree, Unlawful Sexual Intercourse First Degree, and one count of Continuous Sexual Abuse of a Child. If convicted, Defendant faced up to twenty-four life terms of incarceration with a minimum mandatory sentence of 362 years incarceration.
(2) On June 4, 1999, Defendant's attorney at the time, Leo Ramunno, filed a motion to suppress Defendant's statements to police, which included a confession, on the grounds that Defendant's waiver of his Miranda rights was ambiguous. On November 15, 1999, the Court denied Defendant's Motion to Suppress. Ramunno subsequently withdrew from representing Defendant and Kevin O'Connell took his place.
(3) Defendant's trial on the above-captioned charges was set to begin on October 31, 2000. That morning, Defendant accepted a plea offer by the State, which specified that Defendant would plead guilty to Rape Second Degree, Continuous Sexual Abuse of a Child, and Unlawful Sexual Intercourse Second Degree. The State, after lengthy negotiations with Defendant's counsel, agreed to recommend a sentence of forty years Level 5 incarceration, to be suspended after twenty-two years, the statutory minimum sentence, for probation. The remainder of the charges were to be nolle prossed.
(4) Defendant's plea agreement also specified that he have no contact with the victims or children of the victims, that Defendant would register as a Tier 3 sex offender, comply with Megan's Law, and undergo a mental health evaluation and sex offender therapy. Defendant agreed not to contest the termination of his parental rights or any adoption proceedings in Family Court. The State agreed not to oppose Defendant's transfer to Florida if the Department of Correction deemed it appropriate.
(5) Also on October 31, 2000, the Court accepted Defendant's guilty plea. During the plea colloquy, Defendant agreed that the plea agreement contained all of the representations and promises made to him about his plea and that no one had threatened him or forced him to enter into the plea agreement. Defendant admitted to the commission of the offenses to which he pleaded guilty. The Court then determined that Defendant had entered into the plea knowingly and voluntarily and entered judgments of guilt. The Court ordered a presentence investigation.
(6) Following the entry of the guilty plea, Defendant filed a pro se motion to withdraw his plea. Defendant subsequently filed an amended version of that motion. In his motion, Defendant makes numerous claims, most alleging some form of ineffective assistance of counsel. Defendant claims that O'Connell enticed, confused, and coerced him into taking the plea, did not explain to him the meaning of his Tier 3 sex offender status, promised him that he would serve "no more than" fourteen years, four months of his twenty-two year sentence, took advantage of his ignorance of the law, refused to listen to him in meetings, promised him that he would be able to serve his sentence in Florida near his family, and threatened him with life imprisonment if he went to trial. Defendant also claims factual innocence of the charges against him and that the police coerced his confession.
(7) The Court held a hearing to consider Defendant's motion on January 19, 2001. This is the Court's decision of Defendant's motion to withdraw his guilty plea.
(8) 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).
(9) In reviewing such a motion, the Court should make the following inquiries: first, was there a procedural defect in taking the plea?; second, did the defendant knowingly and voluntarily consent to the plea agreement?; third, does the Defendant have a basis to assert legal innocence; fourth, did the defendant have adequate legal counsel throughout the proceedings?; and fifth, does granting the motion 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).
(10) As to the first inquiry, Defendant concedes that, based upon review of the transcript and plea documents, there is no colorable argument of a procedural defect in Defendant's plea proceedings. The Court finds that, in fact, there is no such defect.
(11) Given the posture of Defendant's arguments in support of his motion, the Court will consider the second and fourth Friend factors set forth above, whether Defendant knowingly and voluntarily consented to the plea agreement, and whether Defendant had adequate legal counsel throughout the proceedings, together.
(12) Initially, Defendant argues that his attorney coerced him into accepting the guilty plea. Defendant stated that O'Connell told that him if he went to trial, he would get life in prison and that from the beginning O'Connell told him that there was no hope: Defendant had to accept the plea or he would never see his family or Florida again.
(13) O'Connell testified that he did not believe he misled Defendant as to the consequences of his plea. O'Connell testified that he did not threaten or coerce Defendant into pleading guilty and that he believed the plea to be in Defendant's best interest. O'Connell stated that he went over the Truth in Sentencing guilty plea form and the plea agreement with Defendant and that he believed that Defendant understood them. O'Connell testified that Defendant was hesitant about entering the plea, but did so voluntarily and with knowledge. O'Connell noted that Defendant was very bright and articulate and had a good basic knowledge of legal issues. The State also notes that Defendant is a former police officer who testified at the suppression hearing that he received criminal law and criminal procedures training at the police academy.
(14) Defendant also argues that his defense counsel did not explain the terms of his registration as a Tier 3 sex offender. Defendant testified that O'Connell never explained the consequences of such status in depth, only that it was "part of procedure." O'Connell testified that he explained the consequences of Defendant's status as a sex offender, but that he was not sure how much Defendant understood due to the complicated nature of the guidelines. However, this Court has previously determined that sex offender registration and community notification requirements are collateral and not a direct consequence of a defendant's guilty plea. Modi v. State, Del. Super., Cr. A. NO. IN95-08-* 1733, Alford, J. (Feb. 22, 1999), Mem. Op. at 7-8.
(15) Next. Defendant claims that his attorney promised him that he would serve no more than fourteen years, four months in prison after the deduction of good time credit by the Department of Correction. Defendant states that he believes that O'Connell calculated Defendant's good time credit incorrectly and that he would actually serve a minimum of nineteen years. Again, O'Connell's testimony contradicts that of Defendant. O'Connell testified that he did not promise Defendant that he would be out in fourteen years, only that he could get up to 90 days of credit per year. O'Connell acknowledged that he "painted a rosy picture" and that he wanted Defendant to believe there was a possibility of receiving significant good time credit. However, O'Connell testified that he did not intend to mislead Defendant.
Defendant's current defense counsel raises the issue of whether good time credit reduction of Defendant's sentence for Unlawful Sexual Intercourse Second Degree or Rape Second Degree is permitted. Defendant cites Patterson v. State, Del. Supr., 684 A.2d 1234 (1996) in raising this issue. However, Patterson specifically declined to reach the issue of whether a defendant convicted of Unlawful Sexual Intercourse Second Degree is entitled to earn good time credit towards his sentence. A review of the applicable statutes, 11 Del. C. § 772 and § 774 shows that, while the Court must impose a minimum sentence of ten years incarceration for each offense, those sentences are subject to good time credit. See also State v. Barrera, Del. Super., Cr. A. No. IN95-06-0796, Herlihy, J., (July 3, 1997), Letter Op. at 7.("[F]or [Unlawful Sexual Intercourse Second Degree], there is a minimum sentence of ten years in jail which the Court must impose. While the Court must impose that minimum, it is still subject to good time credits.").
(16) Finally, Defendant argues that O'Connell promised him that he would be able to serve his sentence in Florida near his family. O'Connell testified that he discussed Defendant's transfer to Florida and that he explained to Defendant the process for such a transfer. O'Connell denies that he promised Defendant that he would be sent to Florida in three to six months, as set forth in Defendant's motion.
(17) As noted by O'Connell during the hearing, the record in this case shows that Defendant was hesitant about entering into the plea and that there was an "emotional overlay" to the proceedings, given the nature of the charges against Defendant. However, based upon the Defendant's motion and supporting documents, Defendant's testimony, and O'Connell's testimony at the hearing, the Court cannot find that, based upon the arguments outlined above, Defendant has presented sufficient evidence to support a finding that he did not knowingly and voluntarily consent to the plea or that he did not receive adequate assistance from O'Connell throughout the proceedings.
(18) This finding is further supported by review of the record of the guilty plea proceedings in this case. Defendant completed the TIS sentencing form, which acknowledged the voluntariness and knowledge of his actions. Defendant affirmed that he was satisfied with O'Connell's representation and that O'Connell had fully advised him of his rights. Review of the plea colloquy transcript further supports a finding that Defendant entered into his plea knowingly and voluntarily and that he was satisfied with O'Connell's representation.
Specifically, the transcript of the plea colloquy provides, in part:
THE COURT: You're doing this freely and voluntarily?
THE DEFENDANT: Yes, Your Honor.
THE COURT: Nobody threatened or promised you anything in order to get you to do this?
THE DEFENDANT: No, Your Honor.
THE COURT: Nobody promised you what the sentence of the Court was going to be?
THE DEFENDANT: No, Your Honor.
THE COURT: You understand that you could plead not guilty and have a full trial?
THE DEFENDANT: Yes, Your Honor.
(19) The Court must next consider the third Friend factor, whether Defendant has a basis to assert legal innocence. Defendant asserts in his motion to withdraw the guilty plea that he is innocent of the charges against him. Defendant argues that there is evidence to support such a finding at trial, including an "identical allegation" by one of the victims which was later determined to be unfounded. The State avers in its memorandum that its evidence would show that the victims were individually molested and that both victims witnessed the other being molested. The State's case is further supported by medical evidence of molestation.
(20) Also, Defendant confessed to police on the day of his arrest that he had engaged in several acts of Rape First Degree with his youngest daughter. The Court previously determined that his confession was knowing, intelligent, and voluntary. Defendant also 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. Given the record in this case, the Court cannot find that Defendant has a basis to assert legal innocence of the crimes to which he pleaded guilty.
(21) Finally, the Court must determine whether the State would be prejudiced or the Court unduly inconvenienced if Defendant's motion is granted. Defendant makes no argument regarding this factor in his motion. The State alleges that, although it is prepared to try the case, it would be prejudiced in two ways. First, it points out that Defendant has had numerous court appointed lawyers, at state expense, throughout the case. Also, the State alleges that it would be prejudiced by the trauma the victims would be forced to endure in testifying about sexual abuse endured at the hands of their father if the case were tried. The State does not aver that the victims are otherwise unavailable to testify.
(22) The Court cannot find that the State itself would be prejudiced if Defendant's motion to withdraw his plea were granted or that the Court would be unduly inconvenienced, despite the length of time this case has remained before it. The Court notes that it has been held that "certain of the [ Friend] factors, standing alone, will themselves justify relief." Patterson v. State, Del. Supr., 684 A.2d 1234, 1239 (1996). However, in the instant case, the Court cannot find that this sole factor is sufficient to form fair and just reason to allow Defendant to withdraw his guilty plea, given the Court's findings as to the other factors as outlined above.
Therefore, Defendant's Motion to Withdraw Guilty Plea is hereby DENIED.
IT IS SO ORDERED.