September 17, 2012
STATE OF DELAWARE
ANTWAN BONAPARTE Defendant ID No. 0911006423
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 Because of the minimum sentence that charge required, his bail was revoked.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 Bonaparte pled was rape in the third degree and it stated:
COUNT . A FELONY IN-09-12-0163
RAPE THIRD 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 penetration with Lauren Steed, and the penetration occurred without victim's consent and caused her serious mental or emotional injury.
The Court will assume arguendo that under the facts of the "contact" (Court's quotes) Bonaparte had with the fifteen-year-old, there was a procedural defect. That defect would arguably be that his "penetration" did not accurately describe what clearly was sexual intercourse. One could quibble about that, but unnecessarily so, and it is not relevant to this motion. The new element, however, is not really penetration, but that his penetration caused her serious mental or emotional injury. It is uncontradicted that his intercourse with the victim led to conception, but there is nothing in the record one way or the other about mental or emotional injury to the victim. Further, the original charge of rape second degree did not allege any kind of mental, emotional, or physical injury.
Again, assuming arguendo that there was a procedural defect, Bonaparte waived it. Guilty pleas act to waive pre-plea defects. The leading case for that principle is Downer v. State. There, the State was considering charging Downer with rape first degree but as part of a global plea, among other charges, he pled to sexual misconduct. Additionally, the State indicated it would not pursue the potential rape charge. The trouble was the statute for the sexual misconduct charge had been repealed prior to the time his plea raising the question of how this Court could accept a guilty plea to a nonexistent crime. In holding that this Court did not commit legal error in accepting a guilty plea to a nonexistent crime, the Supreme Court adopted the rationale that pleas can be a tool to avoid a more serious conviction. And in Downer, such a much more serious conviction clearly loomed.
Bonaparte's argument about a jurisdictional issue is without merit. This Court had and has jurisdiction over the crimes of rape second degree and rape third degree. Bonaparte, however, appears to argue that the amended charge of rape third degree was a substantive amendment to the original indictment in violation of Superior Court Criminal Rule 7. If that is the procedural defect, he also waived it by his plea.
The answer to the first question of whether there was a procedural defect is arguably affirmative, but the defect was waived.
Knowingly and Voluntarily Consent to Plea
Bonaparte was twenty-four when he pled guilty. He was already a convicted felon, but it was not a sex offense. Bonaparte's plea was knowing and voluntarily. First, the prosecutor read the plea agreement on the record. Second, his attorney then said he and Bonaparte had discussed the underlying facts of the case which are not complex. Third, Bonaparte knew that a conviction of rape second degree meant he would be sentenced to a minimum of ten years. Fourth, he knew the minimum non-suspendable sentence for rape third degree was and is two years and that the maximum penalty was twenty-five years in jail. Fifth, he said he understood the plea agreement and that it covered the entirety of his plea. Sixth, he had read and understood the list of trial and appeal rights on the TIS Guilty Plea form and knew he was giving them up. Seventh, the Court also verbally reviewed those rights with him. He knew the plea would mean the trial scheduled for the next day would not now occur. Eighth, the Court read the amended indictment to him:
Q. Mr. Bonaparte, on or about the period between January 1, 2009 and January 31, 2009, in New Castle County, State of Delaware, did you intentionally engage in sexual penetration with Lauren Steed, and that penetration occurred without her consent and caused her serious mental or emotional injury?
A. Yes, your Honor.
Q. Do you understand this amended charge of Rape Third Degree to which you're pleading guilty?
A. Yes, your Honor.
Q. Is this your choice to do that?
Q. Is anybody making any threats or promises to you to get you to plead guilty to this charge of Rape Third Degree?
Later in the plea colloquy the following took place:
Q. Now, Mr. Bonaparte, just to make sure this is what you want to do, plead guilty to this amended charge of Rape Third Degree, is that correct, sir?
The Court, in another exchange with Bonaparte confirmed that the sentence range for rape second degree is ten (non-suspendable) to twenty-five years in prison and that for rape third degree, the range is two years (non-suspendable) to twenty-five years.
Therefore, the answer to the second question of the Scarborough inquiry pertaining to whether the plea and knowing and voluntary is, "yes."
Is There A Reason To Claim Legal Innocence?
The short answer to this question is no. His sexual intercourse with the fifteen-year-old girl resulted in her becoming pregnant. Bonaparte has never denied, and does not deny that.
Adequate Counsel in Proceedings
The claim here is that Bonaparte did not receive adequate assistance of counsel during the proceedings. He did have three separate attorneys, first a public defender then two separate conflict counsel. To establish a claim of ineffective assistance of counsel Bonaparte must establish: (1) plea counsel's performance was deficient; and (2) such performance prejudiced him.
As the Court noted earlier, this claim is really a challenge to the current laws on rape and the meaning of "without consent" put together with an attack on plea counsel's performance.
In effect, Bonaparte contends that plea counsel should have urged the State for a plea to the following subsection of rape fourth degree:
Intentionally engages in sexual intercourse with another person, and the victim has not reached that victim's sixteenth birthday and the person is at least 10 years older than the victim, or the victim has not yet reached that victim's fourteenth birthday and the person has reached that person's nineteenth birthday and is not otherwise subject to prosecution pursuant to § 772 or § 773 of this title.
Noting that this subsection does not have the element "without consent, " he asserts that there was nothing non-consensual about the relationship he had with the fifteen year old victim. Further, since he was twenty-three at the time, his conduct falls within that prosribed by the rape fourth statute. The words, "without consent" retained in the amended indictment, is a concept embodied in the offenses of rape second and rape third degree, and connote, he argues, a far more serious set of facts surrounding the rape, such as involvement of a weapon or resulting serious physical injury. He appears to argue that since the age difference between the two here was eight years and not ten years or more, as in 11 Del. C. § 777(a)(1) (rape third degree), his culpability is reduced. The State's offer, therefore, should have been to the less serious offense of rape fourth.
Bonaparte goes so far as to argue that a bill was introduced in the Legislature to "eliminate the inconsistencies in the Delaware Code relating to Sexual Offenses." He launches into a discussion of what the legislation was designed to do. The bill he included in his reply memo letter was House Substitute 1 for House Bill 353. It was introduced in the State House on June 19, 2012, but Bonaparte neglected to note that it was stricken two days later. No new similar legislation was introduced or re-introduced.
Any arguments pertaining to a disagreement with the statutory language must be directed to the Legislature and not this Court.
Additionally, intertwined with Bonaparte's argument on the current statutory scheme, he argues that the State should not have the kind of discretion which was exercised, or not exercised here. Since the facts support a rape fourth degree charge, they should not be permitted to charge a more serious offense. His argument fails because: (1) the facts support(ed) the original charge of rape second degree; and (2) the State was well within its discretion to reject a plea to rape fourth degree. While rape fourth degree is a class C felony, which has no minimum, non-suspendable sentence, the realm of choices of available charges included the other two degrees of rape. Besides, and importantly, the plea meant "only" a two year minimum sentence, not ten.
Plea counsel's response to the ineffective assistance claim on these points is:
Defendant alleges that I was ineffective because, inter alia, I advised him that he had no choice but to accept the plea offer to Rape Third Degree. While I advised him that I expected him to be convicted of Rape Second Degree if the matter proceeded to trial, I believe I made it very clear that the choice to accept the plea was his alone. I advised that I expected that he would be convicted of Rape Second Degree because I believed the State could demonstrate that the victim was under 16, and, as such, could not consent to intercourse with the Defendant. I further believed that the State could prove that intercourse occurred because, among other evidence, the State had DNA evidence from the remains of an aborted fetus establishing that the Defendant was the father of the unborn child. As such, I advised that I believed it was in Defendant's best interest to accept the plea offer from the State.
I tried vigorously to negotiate a plea with the State that would have called for a plea to Rape Fourth Degree. I believed the State was being unduly harsh in their refusal to offer such a plea. However, given the choice between trial on a Rape Second Degree or a plea to Rape Third Degree, I advised the defendant that it was in his best interest to accept the plea.
Defendant alleges that I did not specifically review with him the language of the amended indictment. I have no independent recollection of whether I expressly reviewed this language with him. However, I believe that we did discuss the elements of the charge of Rape Third Degree prior to his entry of the plea.
The evidence and information available to me suggested that Defendant did not actually coerce or force sexual penetration on the victim. However, the concern was that, had the matter proceeded to trial, I believed that the State could establish that no legal consent could be given due to the victim's age. I still believe that the more appropriate plea would have been to a Rape Fourth Degree charge. However, given the State's refusal to extend such a plea, I advised the Defendant that it was in his best interest to accept the plea to Rape Third Degree rather than proceed to trial on the original charge. Prior to the Court's plea colloquy with Bonaparte, plea counsel stated:
Plea Counsel: Your Honor, thank you. Greg Johnson for Mr. Bonaparte, who's standing to my right. And thank you again for giving me additional time to attempt to resolve the matter. I believe we have come to an agreement to resolve this case whereby Mr. Bonaparte would plead as noted by Mr. Robertson. There are no other charges at issue.
We have discussed the underlying facts giving rise to this case, we have discussed the rights he waives by entering the plea. We have discussed the range of penalties he exposes himself to. And as noted on the documents, there's a minimum mandatory two-year period of incarceration. We have also discussed that there is a two to five year guideline that would apply to this charge, I've explained to Mr. Bonaparte that that does not bind the Court. Nor would the State or the defense recommendation bind the Court, the Court will ultimately have final say as to the appropriate sentence, and it could be anything that is called for by the range of penalties noted in the statutory penalty section of the documents at issue.
I've also discussed the underlying facts, and I believe he's entering this plea knowingly, intelligently, and voluntarily. I also believe there to be a factual basis for it. And at this time I tender him to the Court. Thank you.
As part of the plea colloquy, the Court and Bonaparte had this exchange:
Q. Mr. Bonaparte, the charge that I have in front of me - - or the Plea Agreement I have in front of me is that you will plead guilty to the felony of Rape Third Degree reduced from the original Rape Second Degree charge, the State is going to ask that there be a presentence investigation and at this time is not indicating what position a recommendation it will be making at sentencing.
The plea agreement goes on to provide that you will have no contact with Lauren Steed, her residence, school or employer, and that you would be required by law if you plead guilty to this charge to become obligated to register as a Tier II sex offender.
Do you understand that, sir?
A. Yes, your Honor.
Q. Is that the complete plea agreement you have with the State?
A. Yes, your Honor.
Q. Do you have any questions about it?
In addition, Bonaparte verbally told the Court he was satisfied with plea counsel's representation and affirmatively indicated on the TIS Guilty Plea Form that he was satisfied. In the absence of clear and convincing evidence to the contrary, including establishing ineffective assistance of counsel, Bonaparte is bound by these answers.
The sum of it is that if Bonaparte had gone to trial, there was an overwhelming likelihood of a conviction of rape second degree and a sentence of at least ten years in prison. The fact that plea counsel was unable to get the State to agree to a plea to rape fourth degree was not his fault. Nor was it the fault of the prosecutor who chose (1) not to offer that lesser charge, (2) but instead offer a lesser charge reducing the non- suspendable prison sentence by eight years. Bonaparte had adequate counsel throughout the proceedings.
Prejudice to State/Court Inconvenience
Prejudice to the State or inconvenience to the Court are the final Scarborough factors to consider when determining whether a motion for a new trial should be granted.This incident occurred over three and one half years ago. The State would have to track down the female victim who may now be in a different geographic location and/or may be unwilling to testify. As far as she is concerned, this matter was over about two years ago when Bonaparte pled. This places the female victim in a most uncomfortable and potentially unfair situation after all this time.
In addition, with the Court's trial calendar, scheduling a rape trial would burden the Court.
When examining fair and just reasons and those questions set forth in Scarborough, the Court finds Bonaparte has not met his burden of showing why he should be permitted to withdraw his guilty plea.
For the reasons stated herein, Antwan Bonaparte's motion to withdraw his guilty plea is DENIED.
IT IS SO ORDERED.