Opinion
Cr. ID No. 0602003249.
Submitted: April 9, 2007.
Decided: May 7, 2007.
ORDER
This 7th day of May, 2007, upon consideration of the defendant's Motion to Withdraw Guilty Plea and the submissions of Counsel, it appears that:
1. Defendant was indicted on charges of Murder First Degree, Possession of a Firearm During the Commission of a Felony, Tampering with Physical Evidence, Conspiracy II, Criminal Solicitation and Abuse of a Corpse.
2. On December 1, 2006, the defendant pled guilty to Murder Second Degree and Possession of a Deadly Weapon During the Commission of a Felony. The trial was scheduled to commence on January 30, 2007.
3. Given the serious nature of the charges, the Court exercised particular caution during the plea colloquy and extensively reviewed with the defendant his trial rights and the consequences of his entry of a guilty plea. Defendant was also represented by two attorneys who reviewed the plea colloquy and defendant's rights with defendant prior to the entry of the plea.
4. The defendant claims that on or about March 12, 2007, he spoke to the victim's brother while both were incarcerated at the same facility. The DOC was apparently unaware of the connection and made no effort to keep the defendant and the victim's brother separated. The victim's brother allegedly pointed out a relationship between the victim and the co-defendant.
5. On March 29, 2007, the day before he was to be sentenced, the defendant filed a motion to withdraw guilty plea and counsel. In his motion, "[t]he defendant asserts that the development of potentially new evidence raises the spector of the plea not being knowing intelligent and voluntary and subject to a similar analysis as for newly discovered evidence under Superior Court Rule 33."
Defendant's motion to withdraw guilty plea and counsel filed March 29, 2007.
6. On March 29, 2007, the Court, at defense counsel's request, conducted a hearing to advise the defendant of the potential consequences of withdrawing his guilty plea including the possibility that the State would seek to prosecute the original Murder First Degree charge as a capital case. The defendant indicated that he needed more time to determine if he wanted to pursue his motion to withdraw his guilty plea.
7. On April 9, 2007, the State responded, opposing defendant's motion to withdraw guilty plea and counsel.
8. Superior Court Criminal Rule 32(d) permits the Court, prior to sentencing, to allow a defendant to withdraw his guilty plea upon a showing of "any fair and just reason." "While. . . permission to withdraw a plea prior to sentencing is usually granted more liberally than after sentencing, the burden is upon the defendant to articulate sufficient reasoning to meet the fair and just standard."
State v. Friend, Del. Super., Cr. A. No. IN93-08-0631, Carpenter, J. (May 12, 1994) (ORDER).
Id.
9. In Friend, the Court set forth five factors to consider when deciding a pre-sentence motion to withdraw a guilty plea. The Court will review each of those factors as it relates to this case.
1) Was there a procedural defect in taking the plea;
2) Did the defendant knowingly and voluntarily consent to the plea agreement;
3) Does the defendant presently have a basis to assert legal innocence;
4) Did the defendant have adequate legal counsel throughout the proceedings; and
5) Does granting the motion prejudice the State or unduly inconvenience the Court.
10. Procedural Defect. There was a careful and lengthy colloquy between the Court and the defendant as to the nature and consequences of his guilty plea. The defendant raises no issues with respect to procedural defect. All the requirements set forth in Superior Court Criminal Rule 11 were included and the Court finds that there was no procedural defect in the taking of the plea.
11. Knowing and Voluntary Consent. During the plea colloquy the Court specifically asked the defendant whether he had made a thorough examination of the plea agreement with both his attorneys and whether he had entered a plea to criminal charges before. Mr. Facciolo and Mr. Leager, attorneys for the defendant, represented to the Court that they had gone through the Brown v. State colloquy with their client. They explained that they had gone over the colloquy on more than one occasion and the defendant was given several days in between in order to make sure he understood his rights and what he was signing. The Court specifically asked the defendant, "do you understand that if we go forward with this plea, everything coming to this day is irrelevant? In other words, the pending motions, the defenses you might have had, anything that could have happened at trial, your right to a trial, all of those things are gone, and we proceed on the basis of the plea?" The defendant answered "yes." Defense counsel represented to the Court in the presence of the defendant that he faced a possible life sentence. The Court also informed the defendant that he was facing a "very significant sentence" and questioned whether or not he was convinced that entering this plea was in his best interest, to which the defendant replied "yes." At no time did the defendant express any surprise or misunderstanding as to his rights, what was happening, or the potential consequences he faced.
Plea Transcript at 14-15.
Id. at 7.
Id.
Id. at 14.
Id.
Id. at 8.
Id. at 18.
12. Legal Innocence. The defendant has not asserted a claim of legal innocence.
13. Adequate Legal Counsel. The defendant had the benefit of not one but two competent attorneys. The record reveals that both attorneys reviewed the evidence with the defendant, discussed possible defenses and motions, and finally discussed the consequences of a guilty plea. There is nothing in the current motion or the record to suggest the defendant did not have adequate legal counsel when he entered his guilty plea.
14. Prejudice to the State. The State does not claim prejudice. That State contends that there is always an abiding interest in ensuring the integrity of the plea bargaining system and the enforcement of agreements entered.
15. After considering all the factors set forth in Friend, and considering the defendant's assertions, the Court finds that the defendant has failed to meet his burden of articulating any fair and just reason to withdraw his plea. The "newly discovered evidence" on which the defendant bases this motion has no effect on the voluntariness of a plea that he entered more than three months earlier.
16. Superior Court Criminal Rule 33 applies to motions for a new trial, not to motions to withdraw a guilty plea. Even assuming arguendo that the Court would apply the same standard to defendant's motion to withdraw guilty plea the defendant has failed to make the necessary showing. In State v. Hamilton, the Court ruled that in order to warrant granting a new trial on the ground of newly discovered evidence, it must appear (1) that the evidence is such as will probably change the result if a new trial is granted; (2) that it has been discovered since the trial, and could not have been discovered before by the exercise of due diligence; and (3) that it is not merely cumulative or impeaching. The defendant failed to explain in his motion how the conversation he had with the victim's brother satisfies this standard. The "new evidence" appears to relate only to why the victim was at the crime scene. There is no explanation as to how that information would affect the defendant's culpability.
406 A.2d 879 (Del.Super. 1974).
WHEREFORE, the defendant's motion to withdraw guilty plea and counsel is DENIED.
IT IS SO ORDERED.