Submitted: July 5, 2013
Upon Consideration of Defendant's Motion to Withdraw Guilty Plea.
Victoria Watson Counihan, Esquire, Kevin Carroll, Esquire, and Gregory Strong, Esquire, Deputy Attorneys General, Delaware Department of Justice, Carvel State Office Building, Attorneys for the State.
Joe Hurley, Esquire, Attorney for the Defendant.
Vivian L. Rapposelli, Judge.
Defendant Edward DuCoin ("Defendant") pled guilty to two counts of the Sale of Unregistered Securities on October 26, 2011 and subsequently filed a Motion to Withdraw Guilty Plea. An evidentiary hearing was held on the matter on May 29 and 30, 2013. After a full hearing and consideration of supplemental Memoranda of Law, for the reasons set forth below, the Motion is DENIED.
FACTUAL AND PROCEDURAL HISTORY
An Indictment was secured against Defendant in November 2010 for felony offenses to include Securities Fraud, Theft, and three (3) counts of the Sale of Unregistered Securities. Following plea negotiations, Defendant agreed to plead guilty to two (2) counts of the Sale of Unregistered Securities. The State agreed to recommend the presumptive sentence of up to nine (9) months at Level II probation and to dismiss the remaining charges.
Pursuant to the agreement, Defendant entered his guilty plea to two felony counts on October 26, 2011 before J. Babiarz. A sentencing hearing was scheduled for January 13, 2012. On the same day, Joe Hurley, Esquire, filed Motions to Continue the Sentencing Hearing and for Substitution of Counsel, and the hearing was rescheduled for February 3, 2012. On February 2, 2012 Defendant filed this Motion to Withdraw Guilty Plea. After numerous attorney-client privilege discovery filings from both sides, the evidentiary hearing was held on May 29 and 30, 2013.
STANDARD OF REVIEW
Superior Court Criminal Rule 32(d) provides that "[i]f a motion for withdrawal of a plea of guilty or nolo contedere is made before imposition or suspension of sentence . . . the court may permit withdrawal of the plea upon a showing by the defendant of any fair and just reason." The motion is to be addressed to the sound discretion of the trial court. Defendant bears the burden to show a "fair and just reason" to permit the withdrawal.
When considering a Motion to Withdraw Guilty Plea, this Court is guided by the five factors recognized in State v. Friend to determine if a "fair and just reason" exists (referred to ...