       IN THE SUPERIOR COURT OF THE STATE OF DELAWARE

                   IN AND FOR NEW CASTLE COUNTY



STATE OF DELAWARE                     )
                                      )
                                      )
            v.                        )     I.D.   1102019121
                                      )
                                      )
SEAN K. SWEENEY,                      )
                                      )
            Defendant.                )


                                 ORDER


      1. Defendant robbed a TD Bank. He was arrested and charged

with Robbery in the first degree. On August 27, 2012, he entered a plea

of guilty to a single count of the lesser included offense of Robbery in the

second degree.    On the same day, the court imposed the sentence

recommended in the Plea Agreement of 5 years at Level 5, suspended

after 18 months, followed by 18 months at Level 3.


      2. Defendant’s discontent arises out of a period of incarceration he

is currently serving in New Jersey. At the time he entered his plea and

was sentenced in this court, Defendant was in the midst of a five-year

sentence for a crime he committed in the Garden State. Not surprisingly

after Defendant was sentenced in this court, the State of Delaware lodged

a detainer with New Jersey officials so that Defendant would be returned

here after completing his New Jersey sentence.       Defendant complains
that, because of the detainer lodged against him in New Jersey, prison

officials will not transfer him to a prison farm to serve the remainder of

his New Jersey sentence.


      3. Defendant filed a pro se Rule 61 motion in which he sought to

withdraw the guilty plea he entered in this court. The gist of his motion

is that it was his understanding at the time he entered his plea that,

upon completion of his New Jersey incarceration, he would be returned

to Delaware to serve his Level 5 period of incarceration.           Upon

completion of Defendant’s Level 5 sentence in Delaware, Defendant was

to be returned to New Jersey where he would serve both his New Jersey

and Delaware probations concurrently.


      4.   Another judge of this court granted Defendant’s motion for

appointment of counsel, and Theopalis Gregory, Esq. was appointed to

represent him in connection with his Rule 61 motion.       Later, Thomas

Donovan, Esq. was appointed to replace Mr. Gregory as Defendant’s

counsel. Mr. Donovan has now moved to withdraw because he can find

no meritorious issue to pursue on Defendant’s behalf.


      5.   Criminal Rule 32(d) of this court permits the court to allow

withdrawal of a guilty plea prior to the imposition of sentence “upon a

showing by the defendant of any fair and just reason.” Once a sentence

is imposed, however, “[a] judge should permit withdrawal of a plea only if

the judge determines that the plea was not voluntarily entered or was

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entered because of misapprehension or mistake of defendant as to his

legal rights.” 1


         6. Defendant contends that he should be permitted to withdraw

his plea because it was his understanding at the time he entered his plea

that “I would be transported back to Delaware to commence my level 5

incarceration once I became eligible for minimum custody (farm) status

in New Jersey.” The basis for Defendant’s understanding is not entirely

clear. During the plea colloquy Defendant acknowledged that the Plea

Agreement contained the entire agreement between him and the State.

That agreement contains no mention of returning Defendant to Delaware

to serve his Level 5 status once he achieved minimum custody status

during his New Jersey incarceration. Defendant expressly acknowledged

that he had no side deals with the State which were not written down in

the Plea Agreement, and that no one had made any promises to him prior

to the entry of his guilty plea.


         7.   Defendant was made aware that he would not be returned to

Delaware until 2016, when he completed the incarceration portion of his

New Jersey sentence. During the plea hearing the prosecutor recited:

                The State and the defendant are requesting
                immediate sentencing and the State and the
                defendant agree to recommend 5 years at Level
                V, suspended after 18 months for 18 months at
                Level III. This is an IAD case so he is not

1   Collins v. State, 2012 WL 3984545, at *2 (Del. Sept. 11, 2012).



                                             3
             entitled to his credit to the Delaware sentence as
             he is currently serving a sentence out of New
             Jersey.

Later, after the entry of the plea, but before imposition of the sentence,

Defendant    expressed   some   confusion    about   when   his   Delaware

incarceration would begin.        The prosecutor then reiterated that

Defendant would be required to complete his New Jersey incarceration

before returning to Delaware to serve his Level 5 time:

             [L]ike I said, his max—his early release date, I
             guess, is March 25, 2016 then he’ll come back
             here, serve his 18 months

The following exchange took place shortly after the prosecutor’s

statement:

             THE DEFENDANT: Are you saying after I’m
             done in New Jersey, I come back?

             THE COURT: You come back.

The Court told Defendant at the hearing that it would allow him to

withdraw his guilty plea in light of his previous confusion. The Court

also told Defendant that, if he wished to withdraw his plea and discuss it

further with his attorney, it would be willing to place Defendant’s matter

on an afternoon calendar that same day should he decide to re-enter his

guilty plea. Defendant decided not to withdraw his plea and asked to

proceed with sentencing. As mentioned earlier, the Court then imposed

the sentence specified in the Plea Agreement.




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        8. Defendant alleges that a note in his sentencing order supports

his contention that he would be returned to Delaware once he was

classified to minimum custody in New Jersey. That note says nothing

about minimum custody status in New Jersey.        Rather, it recites only

that “[a]fter defendant’s level-5 time in New Jersey, defendant is to be

brought back to Delaware to do his level-5 time, before starting his

probationary period in New Jersey.”


        9.      Finally, and perhaps most importantly, during the plea

colloquy Defendant acknowledged that he was aware that the Court

could sentence him for up to five years in prison. He also acknowledged

that no one had promised him what sentence the Court would impose.

In short, he acknowledged that he had no expectation about the sentence

the court would impose beyond the expectation that it would not exceed

the statutory limit of five years.


        10.   The Court therefore concludes that Defendant’s plea was

knowing, intelligent and voluntary and that Defendant was under no

misapprehension or mistake about his legal rights when he entered his

plea.




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     Wherefore, it is ORDERED that Defendant’s counsel’s motion to

withdraw is GRANTED and Defendant’s motion pursuant to Rule 61 is

DENIED.




                                        John A. Parkins, Jr.
Date: October 29, 2014                  Superior Court Judge




oc: Prothonotary

cc: Sean K. Sweeney, SBI 00717966, Bayside State Prison, Leesburg
    New Jersey
    James K. McCloskey, Esquire, Department of Justice, Wilmington,
    Wilmington, Delaware
    Thomas D. Donovan, Esquire, Thomas D. Donovan, P.A., Dover,
    Delaware




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