Submitted: July 12, 2012
Martin B. O'Connor, Esquire, Deputy Attorney General, Department of Justice, Wilmington, Delaware, Attorney for the State of Delaware
Jan A.T. van Amerongen, Esquire, Wilmington, Delaware, Attorney for Defendant Antwan Bonaparte
Antwan Bonaparte ("Bonaparte") has moved to withdraw his guilty plea to a charge of rape third degree. He has not yet been sentenced. He claims he is factually innocent of the charge and that he received ineffective assistance of counsel. The Court finds that Bonaparte has failed to show a fair and just reason to allow him to withdraw his plea, and that he failed to show he received ineffective assistance of counsel. Bonaparte's motion to withdraw guilty plea is DENIED.
Factual and Procedural Background
The Grand Jury indicted Bonaparte on December 7, 2009 on the charge of rape second degree. Bonaparte was twenty-three at the time this offense allegedly occurred. The female was a fifteen at the time. A fetus was conceived but four months later, the female victim had an abortion. DNA testing showed Bonaparte was the father.
Bonaparte had counsel in this Court from the beginning. There were two case reviews at which there were not guilty pleas entered. On May 17, 2010, he pled guilty to an amended charge of rape third degree. Because of the minimum sentence that charge required, his bail was revoked. He was scheduled for sentencing on August 13, 2010, but by mistake, the Department of Correction released him. A capias was issued, and it was executed and returned by December 22, 2010. His new sentencing date was set for February 11, 2011. Counsel who had represented Bonaparte during earlier proceedings and at the time of the plea, ("plea counsel") wrote to the judge in this Court overseeing the Contract Counsel program. He indicated that Bonaparte had some issues with his representation and wanted to withdraw the plea. He asked that new counsel be appointed, and one was.
After several weeks that counsel asked to withdraw and a new attorney was appointed. After a number of months, uncertainty, and some prodding, a motion to withdraw the guilty plea was finally filed on December 9, 2011. The State responded and plea counsel has submitted an affidavit in response to the motion. Bonaparte's current counsel has replied to both.
Bonaparte's first claim which he argues allows him to withdraw his plea is that he received ineffective assistance of counsel. This claim is broken down into several parts. He alleges plea counsel did not discuss with him the differences between rape second degree and rape third degree. Based on prior proceedings, he already knew the specifics of the original charge of rape second degree. He contends, however, that prior to entering the courtroom to enter the plea, he had not seen the amended indictment to which he was to plead guilty.
He next claims that plea counsel did not pursue issues involving "without consent." Upon this argument, he constructs a full-scale attack on the statutes defining rape and the statutory definition of "without consent." That argument will be addressed more in detail later in this opinion in the interest of avoiding unnecessary repetition.
When a motion to withdraw a guilty plea is presented before sentencing, the Court may allow the plea to be withdrawn upon the defendant showing any fair and just reason.The defendant has the burden to show a fair and just reason. When addressing a motion to withdraw a guilty plea, this Court must address these questions:
1. Was there a procedural defect in taking the plea;
2. Did Bonaparte knowingly and voluntarily consent to the plea agreement;
3. Does Bonaparte presently have a basis to assert legal innocence;
4. Did Bonaparte have adequate legal counsel throughout the proceedings; and
5. Does granting the motion prejudice the State or unduly inconvenience the Court?
Bonaparte's original indictment for rape second degree read:
COUNT . A FELONY IN-09-12-0163
RAPE SECOND DEGREE, in violation of Title 11 Section 772 of the Delaware Code of 1974, as amended. Antwan Bonaparte, on or between January 1, 2009 and January 31, 2009, in the County of New Castle, State of Delaware, did intentionally engage in sexual intercourse with Lauren Steed, and the intercourse occurred without victim's consent.
The victim was fifteen in January 2009, and Bonaparte was twenty-three. "Without consent" under those circumstances means a child under sixteen and a perpetrator more than four years older. The amended charge to which ...