John A. Parkins, Jr. Superior Court Judge
Defendant has brought a Rule 61 motion seeking post conviction relief contending that his counsel was ineffective because counsel, contrary to Defendant's instructions, failed to file a motion to withdraw his guilty plea. The court finds that this motion is not procedurally barred and therefore will reach its merits.
Defendant was charged with Robbery in the first degree, Possession of a Deadly Weapon During the Commission of a Felony, Conspiracy in the Second Degree and Criminal Mischief as the result of a vicious crime occurring in a mall parking lot. According to the State, the defendant and a female companion robbed a female victim and during the course of the robbery the defendant punched and kicked the victim and then ran over her with his car.
In January, 2013 Defendant entered a plea before this judge to Robbery first and Conspiracy Second. He was later sentenced by another judge to five years at level five (with probation to follow) for the Robbery conviction and probation for the Conspiracy conviction. The Defendant asserts he instructed his attorney to file a motion to withdraw his guilty plea. Although it is not clear when these instructions were allegedly given, the court will assume for present purposes that they were given before Defendant was sentenced. Defendant's then counsel states he has no record or recollection of ever having been asked to move to withdraw the plea.
The court finds that the instant Rule 61 motion is not procedurally barred. This is Defendant's first motion for post-conviction relief and it was brought within one year of the date the conviction became final. The court appointed counsel to represent Defendant in the post-conviction proceeding.
Defendant argues that he requested his counsel to move to withdraw his guilty plea and that his counsel failed to do so. Thus, Defendant argues, his counsel was ineffective. The standard for showing ineffective assistance of counsel is a familiar one which needs little explication here. Suffice it to say the Delaware Supreme Court has summarized the law this way:
To establish ineffective assistance of trial counsel, [Defendant] must demonstrate that trial counsel's representation fell below an objective standard of reasonableness and that, but for trial counsel's unprofessional errors, there is a reasonable probability that the outcome of the trial would have been different. Mere allegations of ineffectiveness will not suffice; a defendant must make and substantiate concrete allegations of actual prejudice. Moreover, there is a strong presumption that trial counsel's conduct fell within a wide range of reasonable professional assistance and constituted sound trial strategy.
The court questions Defendant's allegations that he asked his previous counsel to seek to withdraw his guilty plea. In an affidavit filed with this court previous counsel stated he had no record of ever having received such a request. Significantly, when Defendant addressed the court at sentencing he made no mention of ever having made a request to his attorney to withdraw his plea, and it is months after having received his sentence that Defendant first raised this issue.
In order to make out a claim of ineffective assistance of counsel a defendant must show, among other things, that if counsel had been effective, there was a reasonable chance that the result would have been different. In other words, defendant Hampton must show that if his attorney had filed a motion to withdraw his guilty plea there was a reasonable probability it would have been granted. Mr. Hampton has not made this showing.
There is little likelihood the court would have granted a motion to withdraw Defendant's guilty plea. Motions to withdraw a guilty plea are addressed to the court's discretion. Criminal Rule 32(d) permits the court to allow withdrawal of a plea "upon a showing by the defendant of any fair and just reason." The lodestar in making this determination is whether the plea was not voluntary or the defendant was under a misapprehension of his rights. As the Supreme Court has written recently, and on many prior occasions:
Upon moving to withdraw his guilty plea, [Defendant] had the burden to establish a fair and just reason to permit the withdrawal. A judge should permit withdrawal of a plea only if 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." Here, the record unequivocally establishes that [Defendant] entered his plea ...