Summary
permitting the defendant to withdraw his guilty plea presentencing, and distinguishing Downer on the ground that defendant did not understand the nature of a charge
Summary of this case from Hernandez-Martinez v. StateOpinion
ID. No. 0003009437
Submitted: March 15, 2002
Decided: June 18, 2002
Upon Consideration of Defendant's Motion To Withdraw His Guilty Plea.
GRANTED.
John R. Garey, Esq., Dover, Delaware. Attorney for the State.
Christopher D. Tease, Esq., Wilmington, Delaware. Attorney for the Defendant.
ORDER
Upon consideration of the defendant's motion to withdraw his guilty plea, the State's response, and the record of the case, it appears that:
1. On March 15, 2001, the defendant pled guilty to one count of Unlawful Sexual Intercourse in the Third Degree and three counts of Rape in the Third Degree, all lesser-included offenses of more serious charges. The plea was entered pursuant to a written plea agreement with the State. Under the terms of the agreement, the State agreed to enter a nolle prosequi on twenty-six other counts at sentencing. The defendant's guilty plea form noted that the Rape Third Degree offenses, Class B felonies, were each subject to a two year minimum term of incarceration, and the State agreed to recommend a total of not more than eight years of incarceration. After acceptance of the plea by the Court, but before sentencing, the defendant wrote a letter to the Court asking for permission to withdraw his guilty plea and asserting his innocense. Since then, a hearing has been held and legal arguments have been submitted in writing and at oral argument. The defendant's attorney has asserted a number of grounds for withdrawal of the plea. Under Superior Court Criminal Rule 32(d) a request to withdraw a guilty plea made before sentencing may be granted for "any fair and just reason." After carefully considering the defendant's request, I have concluded that there was a serious procedural error made when the plea was entered which requires that the defendant's request be granted.
2. The defendant was indicted on sixteen counts of Unlawful Sexual Intercourse in the First Degree, four counts of Rape in the First Degree, one count of Continuous Sexual Abuse of a Child, one count of Sexual Extortion, and eight counts of Unlawful Sexual Contact in the Second Degree. If convicted on all charges, the defendant would face a minimum of three hundred two years of incarceration. When indicted, the defendant was seventeen years old.
3. At final case review the week prior to the defendant's scheduled trial, the State and defense counsel explained the plea agreement in open court with the defendant present. During the course of that explanation, defense counsel stated that he had explained the nature of the charges and the possible penalties to the defendant. During the ensuing plea colloquy, the defendant, when asked if he understood the charge of Unlawful Sexual Intercourse in the Third Degree, a lesser-included offense of Unlawful Sexual Intercourse in the First Degree under Count I, responded "[a] little, somewhat." Defense counsel stated that he had explained the charge to the defendant in "a generic term with the understanding of the lesser-included offense and the penalties." The Court then asked the prosecutor to state the charge of Unlawful Intercourse in the Third Degree for the defendant. The prosecutor stated the charge as follows:
Your Honor, the exact charge would be Unlawful Sexual Intercourse in the Third Degree, a felony. Louis D. Woolford, on or between the 20th day of May and 31st day of December, 1995, in the County of Kent, State of Delaware, did intentionally engage in sexual intercourse with (victim's name), who was less than 16 years of age.
The defendant was asked whether he understood that charge and said he did. The defendant was then asked whether he understood the charge of Rape in the Third Degree. He responded, "I guess it follows the same thing, right?" At the Court's request, the prosecutor then stated the charge of Rape in the Third Degree in the following terms:
Rape in the Third Degree. Louis D. Woolford, between the 10th day of September 1998 and 28th day of February 1999, in the County of Kent, State of Delaware, did intentionally engage in sexual intercourse with (victim's name), who had not yet reached his 16th birthday.
The defendant was asked whether he understood that charge. He replied he did. The other two Rape in the Third Degree charges were briefly discussed, and the defendant then admitted his guilt to all four charges. At the conclusion of the plea colloquy the plea was accepted.
4. The defect in the foregoing plea colloquy pertains to the Rape Third Degree charges. The elements of the offense explained to the defendant, those to which he admitted guilt, were the elements of Rape in the Fourth Degree, not Rape in the Third Degree. In other words, he in fact pled guilty to Rape in the Fourth Degree thinking he was pleading guilty to Rape in the Third Degree.
5. Rape in the Fourth Degree is committed if a person "[i]ntentionally engages in sexual intercourse with another person, and the victim has not yet reached his or her sixteenth birthday." This is what the defendant admitted. Rape in the Third Degree has two arguably relevant subsections. One provides that Rape Third Degree is committed if a person intentionally engages in sexual intercourse with another person where the victim is less than sixteen and the defendant is at least ten years older, or if the victim is less than fourteen and the defendant is nineteen or older, and the defendant is not subject to prosecution for Rape in the Second Degree or Rape in the First Degree. Here, there is less than a ten year age difference between the victim and the defendant, and the defendant was less than nineteen when the alleged offenses took place. It would appear that the defendant cannot be legally guilty of Rape in the Third Degree under this subsection. The other subsection provides that Rape Third Degree is committed if a person intentionally engages in sexual penetration with another person where the victim has not reached his sixteenth birthday and, during the commission of the crime, the person causes physical injury or serious mental or emotional injury to the victim. While the defendant's admission may conceivably fit this subsection, it does not help the fact that the nature of the charge explained to the defendant was not that of Rape in the Third Degree.
6. Superior Court Criminal Rule 11(c)(1) provides that a defendant offering a guilty plea must understand "[t]he nature of the charge to which the plea is offered." Based upon the record of this case, I am convinced that this defendant had no knowledge of the elements of Rape in the Third Degree and did not understand the nature of that charge. The Delaware Supreme Court has stated that where there is a serious procedural defect in the plea process or where it clearly appears that the defendant did not knowingly consent to the plea agreement, a sufficient basis exists for withdrawal of the plea regardless of whether there is a basis for a claim of factual innocense or whether there is prejudice to the State. I conclude that this is such a case.
Patterson v. State, 684 A.2d 1234, 1239 (Del. 1996).
7. The case of Downer v. State is one in which a defendant was not permitted to withdraw a guilty plea when it was learned later that the offense to which he pled guilty had been repealed prior to his plea. In other words, Mr. Downer pled guilty to a crime which no longer existed. That case, however, involved a collateral attack upon the Downer's conviction, not a motion under Rule 32. While the case may provide some support for the State's opposition to the defendant's motion, and there is no doubt that a plea of guilty generally waives any defense the defendant theretofore had, in my view these considerations cannot overcome the more recent authority of Patterson v. State and the serious procedural defect which occurred with this plea. I have also given some thought to whether the plea agreement can be reformed to a plea of guilty to one count of Unlawful Sexual Intercourse in the Third Degree and three counts of Rape in the Fourth Degree with a recommended sentence of six to eight years. I have concluded, however, that a substantive modification of this nature should not be undertaken without the agreement of both parties.
543 A.2d 309 (Del. 1988).
8. Therefore, the defendant's motion to withdraw his plea of guilty is granted.
IT IS SO ORDERED.