State v. Smith
| Decision Date | 19 March 2021 |
| Docket Number | Case ID. No.: 1901000972 |
| Parties | STATE OF DELAWARE, v. DERRO SMITH, Defendant. |
| Court | Delaware Superior Court |
Upon Consideration of Defendant's Motion to Withdraw Guilty Plea, DENIED.
Matthew C. Buckworth, Esquire and Marc C. Petrucci, Esquire, Deputy Attorneys General, Department of Justice, Wilmington, Delaware. Attorneys for the State.
Raymond D. Armstrong, Esquire, Office of Defense Services, Wilmington, Delaware. Attorney for Defendant.
AND NOW TO WIT, this 19th day of March, 2021, upon consideration of Defendant Derro Smith's ("Defendant") Motion to Withdraw Guilty Plea, the State's Response, oral argument, the corresponding evidentiary supplement, and the record in this case, it appears to the Court that:
1. The case against Defendant involved an allegation of a shooting on December 23, 2018 that struck the victim in the right leg on the 800 block of East 13th Street in Wilmington. Defendant was alleged to have assaulted the victim in the presence of the victim's wife and child. Though neither witness provided a name of the shooter, both provided Defendant's nickname.
2. On March 4, 2019, Defendant was indicted on charges of Assault First Degree, Possession of a Firearm During the Commission of a Felony (PFDCF), Possession of a Firearm by a Person Prohibited (PFBPP), Possession of Ammunition by a Person Prohibited (PABPP), Carrying a Concealed Deadly Weapon, and Endangering the Welfare of a Child.
3. On July 15, 2019, at final case review, the State extended Defendant a plea offer to one count of Assault Second Degree and PFDCF. The offer carried a minimum mandatory sentence of five years at Level V and Defendant rejected the offer.1
4. Trial was scheduled to begin on November 19, 2019, at which time the State extended a different plea offer. It offered to drop the firearm charge in exchange for Defendant's agreement to plead guilty to one count of Assault First Degree, with the State recommending a sentence of seven years at Level V and Defendant seeking no less than five years.2
5. With the removal of the firearm and its mandatory three-year minimum, Defendant was informed that although the Level V recommendations ranged between five (Defendant) and seven (State) years, the Court could exercise its discretion and sentence Defendant to something less, where the legally required minimum mandatory incarceration period was now two years.3 The Court gave Defendant time to confer with Natalie Woloshin, Esquire (Trial Counsel) who confirmed after doing so that Defendant elected to accept the offer and resolve his matter through this new plea agreement.4
6. The Court conducted a plea colloquy and found Defendant entered the plea knowingly, voluntarily, and intelligently.5 Though hesitant when asked whether he was satisfied with Trial Counsel, he ultimately expressed to the Court hebelieved that Trial Counsel had done what she could reasonably do for him.6 The Court then accepted his plea and scheduled the matter for sentencing.7
7. On November 22, 2019, Defendant filed a pro-se motion to withdraw his plea asserting ineffective assistance of counsel.8 On January 28, 2020, Trial Counsel filed this Motion to Withdraw Guilty Plea and to Withdraw as Counsel.9 The State opposed the Motion to Withdraw Defendant's Guilty Plea.10 The Court granted the Motion to Withdraw as Counsel.11 Through the Office of Defense Services, Raymond Armstrong, Esquire was appointed to represent Defendant but the matter could not be scheduled due to Defendant's various attempts to retain private counsel between January and May 2020.12 Mr. Armstrong (Defense Counsel) eventually returned as Defendant's representative.
8. On July 16, 2020, the State filed its Response to Defendant's Motion to Withdraw.13 Oral arguments were scheduled for August 14, 2020 but had to be rescheduled due to audio technical difficulties via Zoom. On September 25, 2020, after oral arguments, Defense Counsel requested an opportunity to question Trial Counsel either via a deposition or an evidentiary hearing. The Court agreed. The State requested an in-person evidentiary hearing in lieu of deposition, scheduled on December 8, 2020.
9. On December 3, 2020, Defense counsel informed the Court that Defendant did not wish to elicit the testimony of Trial Counsel and refused to waive his Attorney-Client privilege.14 The Court did not order Trial Counsel to testify.15 Without objection from the State, Defense Counsel instead introduced sealed documents from Trial Counsel's file in support of his position. This matter is ripe for disposition.
10. There is no absolute right to withdraw a guilty plea.16 Under Superior Court Criminal Rule 32, "[i]f a motion for withdrawal of a plea of guilty . . . is made before imposition . . . of sentence . . . the court may permit withdrawal of the plea upon a showing by the defendant of any fair and just reason."17 Whether such a motion is granted is within the sound discretion of the Court.18 The defendant carries the burden of demonstrating a fair and just reason to permit withdrawal19 and "that burden is substantial."20 It is further the law that such a motion will only be granted if the Court finds "[t]he guilty plea was not voluntarily made, or that it was entered by reason of a mistake of the defendant as to his legal rights."21
11. Following McNeill v. State, in determining whether withdrawal would be fair and just, the court considers the following factors:
The Court does not conduct a balancing test of these factors, rather "[c]ertain of the factors, standing alone, will themselves justify relief."23
12. Defendant asserts the following grounds in support of his Motion: (1) "Ineffective assistance of counsel" - Defendant argues that Trial Counsel should have had a private investigator speak to the alleged victim; (2) "Conflict of interest" - Defendant asserts there was a conflict between him and Trial Counsel because Trial Counsel spoke with the alleged victim regarding the charges; (3) Duress - Defendant argues he felt pressured by Trial Counsel to take the plea; and (4) Defendant asserts he is innocent of all charges.24
13. As to the first factor, Defendant admits that there was no defect.25
14. Defendant claims he was under duress and pressured by Trial Counsel to enter his plea.26 He further argues the plea was not knowing and voluntary because Trial Counsel created a conflict of interest when she spoke with the alleged victim regarding the charges.27 Neither contention supports his basis for relief.
15. Defendant's statements before the Court during a guilty plea colloquy are "presumed to be truthful."28 Such statements pose a "formidable barrier in any subsequent collateral proceedings."29 To overcome this barrier, Defendant must show by clear and convincing evidence that his previous testimony and the answers on the Truth-In-Sentencing (TIS) Form were incorrect at the time given.30
16. The Court asked Defendant if he believed he had had adequate time to discuss his decision with Trial Counsel.31 Defendant responded 32 During the colloquy, Defendant was asked if he was entering the plea knowingly, voluntarily, and intelligently, Defendant responded, "I enter thisplea voluntarily, ma'am."33 He further stated that no one had forced him to enter into the plea agreement.34 Defendant presents no evidence to overcome the heavy presumption of truthfulness that his statements carried nor is there anything in the record to suggest that Defendant was untruthful at the time he entered his plea.
17. That Trial Counsel spoke with the alleged victim about the statements he made to police following the alleged incident does not create a conflict of interest between Defendant and Trial Counsel.35 Nor is it enough to show that Defendant's plea was not made knowingly, voluntarily, and intelligently. Therefore, the Court finds, as it did at the time the plea was entered into, that Defendant's plea was made knowingly, voluntarily and intelligently.
18. Once a defendant admits to an offense during a guilty plea, there must be some support in the record for that defendant to assert innocence.36 Conclusory statements are not enough to provide a defendant "with an adequate legal basis toassert his innocence."37 Though he states that he has a basis to assert his legal innocence, he does not state what it is.38 Rather, his claim is that Trial Counsel should have done more with the victim's recantation to get his charges dismissed.39 This claim is insufficient.
19. A review of Trial Counsel's materials reflects what both sides already knew on the day of trial when the new offer was extended: the victim recanted and expressed a different narrative about whether it was Defendant who shot him. The State was fully aware on the day of trial when it extended its new plea offer that, according to Trial Counsel, the victim visited her office the week before trial, recanted, and indicated that he did not wish to testify.40 Yet at trial, the State was ready to offer the testimony of the victim's wife who remained willing to testify that she witnessed Defendant shoot her husband. According to the victim's wife, her husband was scared to testify and wanted to put this behind him yet he did show up at trial prepared to testify.41 The State indicated it would have used the victim's prior statement to establish its case under 11 Del. C. § 3507.42...
To continue reading
Request your trial