Opinion
I.D. No. 0603000695.
Submitted: September 11, 2007.
Decided: September 20, 2007.
Upon Defendant's Motion to Withdraw Guilty Plea. Granted.
R. David Favata, Esquire, Department of Justice, Dover, Delaware; attorneys for the State of Delaware.
Kevin M. Howard, Esquire, Young Malmberg Howard, P.A., Dover, Delaware; attorneys for the Defendant.
The Defendant, Richard Squier, also known as Richard Phillips ("Defendant"), has moved to withdraw his guilty plea of one count of Unlawful Sexual Intercourse in the Third Degree pursuant to Super. Ct. Crim. R. 32(d). He was indicted for one count of Endangering the Welfare of a Child, a misdemeanor; one count of Incest; two counts of Unlawful Sexual Intercourse in the First Degree; one count of Unlawful Sexual Intercourse in the Third Degree; one count of Continuous Sexual Abuse of a Child; and ten counts of Unlawful Sexual Contact in the Second Degree. On April 27, 2007, Defendant entered a Plea Agreement and completed a Guilty Plea Form. Thereafter, Defendant was subjected to a Plea Colloquy per Delaware Superior Court Rule 11(c)(1) and Brown v. State . On June 13, 2007 this matter was continued to determine whether Defendant intended to withdraw his plea and a hearing was scheduled to consider the matter. On July 11, 2007, Defendant made a Motion to Withdraw Guilty Plea. Oral arguments were heard on September 11, 2007.
Richard Phillips had his name officially changed to Richard Squier. Transcript of Sentencing, June 13, 2007, p. 2, ll. 14-16.
250 A.2d 503, 505 (Del. 1969)
Defendant claims, and the State agrees, that the maximum penalties used for the plea agreement discussions and on the Plea Agreement Form were incorrect. Further, Defendant was not made aware that he is entitled to make an election of being sentenced under either the Truth In Sentencing (TIS) Act provisions or the prior standards. Therefore, Defendant did not complete his Guilty Plea Form with full knowledge of his available sentencing options.
"Any individual convicted of a crime on or after January 1, 1990, which crime occurred prior to June 30, 1990, may elect to be sentenced under the provisions of the Truth in Sentencing Act of 1989 rather than under the prior provisions of this title." 11 Del. C. § 4216(d).
Defendant contends that the fact that he was eligible to make such an election did not come to light until the Pre-Sentence Office issued its report. Further, that the election is important in this case because of the differing maximum penalties under each scheme.
At the time of the plea agreement conversations, Defendant had not been told that when the crimes were first committed on August 1, 1987, Unlawful Sexual Intercourse in the Third Degree was a Class B Felony carrying a penalty of 3 to 30 years at supervision Level V. Under the TIS provisions, enacted in1989, this is considered a Class C Felony carrying a penalty of 0 to 10 years. The Defendant's Plea Agreement described the statutory penalty to be 0-15 years imprisonment at supervision Level V, and had a presumptive guideline of 0-30 months at supervision Level V. Defendant had the option to elect the sentencing scheme under which he would negotiate his Plea Agreement. Presentence Investigation on Richard A. Phillips, June 1, 2007, p. 5.
Furthermore, there is a difference in calculating good time under each sentencing scheme. Under the Non-TIS provisions (pre-1989), an offender earns five days each month during the first year of imprisonment that is served; seven days for each month during the second year served; nine days each month during the third year served; and ten days for each month served for four years and beyond. Under TIS provisions, however, good time accrues two days each month for the first year served and three days each month for each year after that.
Discussion
"The decision whether or not to permit a defendant to withdraw his guilty plea is within the sound discretion of the trial court." The Court may grant a motion to withdraw a guilty plea if the defendant demonstrates any fair and just reason. The defendant bears the burden to prove that his plea was "[n]ot voluntarily entered or was entered because of misapprehension or mistake as to . . . [defendant's] legal rights.", Rule 32(d) suggests, and Delaware Superior Court has consistently held, that motions to withdraw guilty pleas are typically granted more liberally prior to sentencing than after sentencing. In reviewing these motions, Courts have considered 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
(f) Does granting the motion prejudice the State or unduly inconvenience the Court.
Friend at *1-2.
First, regarding the procedural defect factor, the Court conducted a plea colloquy to ensure that Defendant was knowingly, voluntarily and intelligently entering the guilty plea. Since the plea colloquy was based on the parties' inaccurate recitation of the penalties, the plea colloquy did not confirm that Defendant was knowingly, voluntarily and intelligently entering the guilty plea. Second, since the Plea Agreement and Plea Agreement Form did not fully or correctly describe the maximum penalties and good time calculations, Defendant did not knowingly consent to the plea agreement. At the time of the plea colloquy, neither of the attorneys correctly apprised the Defendant of these facts. Third, Defendant now denies the instant offense and wants to take all of the charges to trial. The Court is not in a position to evaluate the basis of his assertion of innocence. Fourth, Defendant's legal counsel admits that he failed to correctly cite the statutory penalty for the charge and neither his attorney, the State nor the Court advised Defendant on his option to elect his sentencing scheme. Finally, considering the prior four points, granting this motion would not unduly prejudice the State or burden the Court. As this issue has been raised for several months now, granting the motion and possibly going to trial would not surprise the State. The amount of time involved by the Court is outweighed in the Court's interest in seeing justice served.
State v. Lewis, 2007 WL 2230946, *2 (Del.Super., 2007).
Presentence Investigation on Richard A. Phillips, June 1, 2007, p. 13. It should be noted, however, that this position is not discussed in the Motion to Withdraw Guilty Plea.
State v. Drake, 1995 WL 654131, *6 (Del.Super., 1995) (discussing the standard for evaluating a motion to withdraw a plea, including prejudice to the State).
In oral arguments, the State noted that Defendant completed his Plea Agreement Form and knowingly, voluntarily and intelligently answered the Plea Colloquy questions. Indeed, at sentencing, the Court fully reviewed with the Defendant the correct maximum sentence and the election that may take place. Under the facts asserted by Defendant, it appears that the Plea was entered into by Defendant without a proper understanding of his legal rights, and further, that the Plea Form itself contained an improper statement of law, i.e., the wrong maximum penalty. Since there was not a complete understanding, the State's argument fails to prove that Defendant entered his Plea Agreement knowingly, voluntarily and intelligently.
Conclusion
Allowing a withdrawal of Defendant's guilty plea may be "fair and just" and is within the sound discretion of the Court. The State has not responded in writing but the points made in oral arguments do not change the fact that Defendant entered into his plea with incomplete information. The Court must grant Defendant's Motion to Withdraw Guilty Plea.
IT IS SO ORDERED.