State of Delaware v. Shorts.

IN THE SUPERIOR COURT OF THE STATE OF DELAWARE
IN AND FOR NEW CASTLE COUNTY
)
STATE OF DELAWARE )
) I.D. No. 1405001074
v. )
)
JERRY SHORTS, )
)
Defendant. )
Submitted: November 30, 2015
Decided: December 1, 2015
On Defendant’s Amended Motion to Withdraw Guilty Plea.
DENIED.
ORDER
Sonia Augusthy, Esquire, Deputy Attorney General, Department of Justice,
Wilmington, Delaware, Attorney for the State.
T. Andrew Rosen, Esquire, Assistant Public Defender, Office of the Public
Defender, Wilmington, Delaware, Attorney for Defendant.
COOCH, R.J.
This 1st day of December, 2015, upon consideration of Defendant’s
Amended Motion to Withdraw Guilty Plea, it appears to the Court that:
1. On May 2, 2014, Jerry Shorts (“Defendant”) was arrested and charged
with Continuous Sexual Abuse of a Child in violation of 11 Del. C. §
776, and four counts of Sexual Abuse of a Child First Degree in
violation of 11 Del. C. § 778. On February 23, 2015, Defendant
entered a guilty plea to an amended charge of Rape Fourth Degree.
2. On October 27, 2015, Defendant, through counsel, filed an Amended
Motion to Withdraw Guilty Plea (“Motion”). 1 Defendant states that:
[a]t [the] case review on November 24, 2014, Defendant accepted
a plea to Rape 4 before the Honorable Richard R. Cooch rather
than risk a worse outcome at trial based on circumstantial
evidence.
During the PSI, Investigative Services asked the victim if the
Defendant had any identifying marks (information not requested
by the investigating officer). The victim mentioned a mole but
could not recall the location (Defendant has a mole on his
shoulder that would have been visible under normal
circumstances). Defendant suffers from server psoriasis [on his
genitalia] which has been confirmed both visually and through
medical records which Defendant suggests would certainly have
been visible during the type of contact the victim alleges.
Previously, this information would only have been available to
defense through cross-examination. Defendant indicates that if he
had that information at the time of the plea he would not have
accepted the State’s offer.
Defendant asserts that it could not be a knowing, intelligent and
voluntary plea if a material fact in the case was not known to him
or defense counsel at the time of the plea. 2
3. ‘“The decision whether or not to permit a defendant to withdraw a
guilty plea is within the sound discretion of the trial court.’” 3 The
Court may grant a motion to withdraw a guilty plea for any fair and just
reason.4 In evaluating whether any fair and just reason exists to allow a
defendant to withdraw his guilty plea, the Court will weigh five factors:
(1) Was there a procedural defect with the plea;
1
Defendant filed his original Motion to Withdraw Guilty Plea on September 3, 2015. The
amended Motion filed in October mirrors the original Motion, and includes additional details in
support of the Motion. At a conference held on November 16, 2015, counsel for Defendant
stated that he was content to have the Amended Motion to Withdraw Guilty Plea decided on the
present record.
2
Def’s. Am. Mot. to Withdraw Guilty Plea ¶¶ 2-4 (emphasis in original).
3
State v. Phillips, 2007 WL 3105749 at* 1 (Del. Super. Sept. 20, 2007) (quoting Brown v. State,
250 A.2d 503, 504 (Del. 1969)).
4
Super. Ct. Crim. R. 32(d).
2
(2) Whether the defendant knowingly and voluntarily consented
to the plea agreement;
(3) Whether there is a present basis for the defendant to assert
legal innocence;
(4) Did the defendant have adequate legal counsel during the
proceedings; and
(5) Will granting the motion prejudice the State or unduly
inconvenience the Court.5
4. “Only where the judge determines that ‘the plea was not voluntarily
entered or was entered because of misapprehension or mistake of
defendant as to his legal rights’ should the judge grant the defendant’s
request to withdraw his guilty plea.”6 “A defendant’s statements to the
Superior Court during the guilty plea colloquy are presumed to be
truthful.”7 The burden is on the defendant to show that a plea was not
entered into voluntarily. 8
5. On February 23, 2015, Defendant signed the Guilty Plea form and
Plea Agreement and entered into athorough colloquy with this Court.
As part of his plea agreement, Defendant agreed to plead guilty to one
count of an amended charge of Rape Fourth Degree in violation of 11
Del. C. § 770. Defendant also agreed to have no contact with the
victim and have a pre-sentence investigation conducted. During his
plea colloquy, Defendant was asked, among other things,:
THE COURT: Are you Jerry Shorts?
THE DEFENDANT: Yes, sir.
THE COURT: Did you sign the guilty plea form after reviewing
it carefully with your attorney, Mr. Rosen?
5
Scarborough v. State, 938 A.2d 644, 649 (Del. 2007) (citing Patterson v. State, 684 A.2d 1234,
1239 (Del. 1996)).
6
Id. at 650 (quoting State v. Insley, 141 A.2d 619, 622 (Del. 1958).
7
Somerville v. State, 703703 A.2d 629, 632 (Del. 1997).
8
Id.
3
THE DEFENDANT: Yes, sir . . . .
THE COURT: Has your lawyer, the State or anyone threatened
or forced you to enter this plea?
THE DEFENDANT: No, sir.
THE COURT: Do you understand that because you are pleading
guilty, you will not have a trial and you, therefore, waive or give
up certain constitutional rights?
THE DEFENDANT: Yes, sir.
THE COURT: Do you understand that those constitutional rights
include . . . [the right] to hear and question the witness against
you?
THE DEFENDANT: Yes, sir . . . .
THE COURT: Do you believe that you are knowingly,
voluntarily, and intelligently entering a plea of guilty to this
charge?
THE DEFENDANT: Yes.
THE COURT: Do you understand that what’s being done today
is final, meaning that you will not be able to come back at any
later time to seek to withdraw your guilty plea?
THE DEFENDANT: Yes, sir. 9
6. Defendant cannot show the first or second factors. During the plea
colloquy, Defendant acknowledged that he reviewed the plea
agreement with his attorney. He stated that his decision was not
threatened or forced and he acknowledged that he understood he was
giving up certain constitutional rights. Specifically, Defendant stated
that he recognized the fact that he was giving up the right to “hear and
question witnesses against [him].” Defendant also stated that he
understood that his entry of a guilty plea was final and he would not
be permitted to withdraw that plea at a later time.
9
Tr. of Plea Hr’g at 4, 5, 6, 9.
4
7. Similarly, Defendant has failed to demonstrate the third factor,
weighing whether the defendant is now able to assert his innocence.
Defendant has not shown that he actually has psoriasis, when he
contracted the aliment, or that he was experiencing a “flare up” at a
time that would have allowed the victim to notice it. 10
8. Defendant is also unable to demonstrate the fourth factor. His
attorney was competent in negotiating a successful plea agreement
and reductions in both his sentencing risk and sex offender tier. “[A]t
[the] case review on November 24, 2014, Defendant accepted a plea
to Rape 4 before the Honorable Richard R. Cooch rather than risk a
worse outcome at trial based on circumstantial evidence.” 11
9. Finally, the State and Court would likely be prejudiced by allowing
Defendant to withdraw his guilty plea. The State need not show that it
would suffer any prejudice when a defendant is unable to demonstrate
the other factors.12 The Court would be unduly inconvenienced
because it would be forced to expel more judicial resources than have
already been consumed.
10. Defendant failed to demonstrate a any fair and just reason for
withdraw of his guilty plea simply because he now is aware of
potentially-favorable evidence.
Therefore, Defendant’s Motion for Postconviction Relief is DENIED.
IT IS SO ORDERED.
______________________
Richard R. Cooch, R.J.
cc: Prothonotary
Investigative Services
10
“The disease includes symptoms that ‘often disappear (go into remission), even without
treatment, and then return (flare up).”’ Resp. of the State of Delaware to Def’s. Am. Mot. to
Withdraw Guilty Plea at 6 (quoting Psoriasis Causes, Symptoms, Treatments, WebMD,
November 30, 2015, http://www.webmd.com/skin-problems-and-treatments/psoriasis/psoriasis-
topic-overview).
11
Def’s. Am. Mot. to Withdraw Guilty Plea ¶ 2.
12
State v. Barksdale, 2015 WL 5676895 at* 6 (Del. Super. Sept. 14, 2015) (citations omitted).
5