        IN THE SUPERIOR COURT OF THE STATE OF DELAWARE

                   IN AND FOR NEW CASTLE COUNTY



STATE OF DELAWARE,                  )
                                    )
      V.                            )     DEF. I.D.: 1406005949
                                    )
DEREK S. CAPERS,                    )
                                    )
                  Defendant.        )




                         Submitted: October 9, 2015
                         Decided: November 17, 2015


                                  OPINION

                  Upon Consideration of Defendant’s Motion
                         To Withdraw Guilty Plea.
                               GRANTED.




Periann Doko, Esquire, Department of Justice, Wilmington, Delaware. Attorney
for State of Delaware.

T. Andrew Rosen, Esquire, Office of Public Defender, Wilmington, Delaware.
Attorney for Defendant.



BUTLER, J.
                  FACTUAL AND PROCEDURAL HISTORY

      Defendant was indicted on several charges, the only one of which concerns

us here is the single count of Possession of a Firearm by a Person Prohibited

(PFBPP). This count alleges that Defendant was in possession of a firearm on June

7, 2014 and that he was previously convicted of a violent felony in New Jersey in

1995. This point is important because, due to the operation of 11 Del. C. §1448(e),

the possession of the weapon subjects him to enhanced sentences of either 3, 5 or

10 years, depending on whether he has previously been convicted of 1 or 2

“violent” felonies and the timing between them.

      At the time Defendant tendered a guilty plea, he admitted the prior violent

felony conviction as articulated in the indictment and so there is no dispute but that

Defendant is subject to at least 5 years incarceration. The parties indicated at the

time, however, that there was some question whether Defendant had a second prior

violent felony conviction in New Jersey that would further enhance the sentence

and trigger the 10 year minimum mandatory provision. And thus it came to pass

that Defendant tendered a guilty plea to “either” 5 years or 10 years, depending on

the nature and timing of this second prior felony conviction in New Jersey.

      There were a couple of procedural developments from that point to here.

First, the presentence office reported that Defendant did indeed have a second

conviction in New Jersey for “Distribution of a Controlled Substance.”            The


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presentence office, however, noted that this was not considered a “violent felony”

under New Jersey law and that therefore, the 10 year mandatory provision of

section 1448(e)(1)(c) was not implicated. The State filed a protest with the Court

and sentencing was deferred to consider that issue.

          After consideration, the Court ruled that, in the context of a person

prohibited sentencing, the provision of 11 Del. C. §4201(c) defining “violent

felonies” was intended to include offenses in other jurisdictions that prohibited the

same behavior as “violent felonies” in Delaware regardless whether the foreign

jurisdiction designated the behavior “violent” or not. 1

          This teed the matter up for sentencing once again but once again it came off

the calendar. This time, the defense indicated that it would seek to withdraw the

guilty plea based on the Court’s ruling regarding the prior New Jersey drug

conviction. The motion to withdraw the plea has now been fully briefed.

                                   STANDARD OF REVIEW

          “A motion to withdraw a guilty plea is addressed to the sound discretion of

the trial court.” 2 The Court may permit the withdrawal of a guilty plea prior to

sentencing for “any fair and just reason,” and thereafter only pursuant to Rule 61.3


1
    See 11 Del. C. § 1448(e)(3).
2
 Scarborough v. State, 938 A.2d 644, 649 (Del. 2007) (quoting Blackwell v. State, 736 A.2d
971, 972 (Del. 1999)).
3
    Super. Ct. Crim. R. 32(e).
                                            2
The defendant bears the burden to show that there is a fair and just reason to permit

the withdrawal.4

                                        DISCUSSION

         The benefit of hindsight leads the Court to conclude that it should not have

accepted this guilty plea when there was so much unknown regarding Defendant’s

prior conviction(s) in New Jersey. Certainly both sides were aware that he had a

prior violent felony conviction for Manslaughter in New Jersey – that much was

spelled out in the indictment and, as stated, was not in controversy. And we can

assume that Defendant knew he had a conviction for at least some sort of drug

charge in New Jersey – presumably he was there when the conviction was

rendered. But it is easy for the Court to appreciate that Defendant would not

believe his New Jersey conviction for drugs was a “violent felony.” Indeed, New

Jersey does not categorize it as such while Delaware does. 5




4
    Scarborough, 938 A.2d at 649.
5
  Delaware’s experience with calling drug crimes “violent felonies” can be traced to H.B. No.
507, passed by the General Assembly in 1996. Indeed, this was the first attempt by the General
Assembly to define the term violent felony, as it had no use as a defined term before then. But in
1996 the legislature enacted an amendment to the Habitual Offender law, 11 Del. C. § 4214 (a)
to create a whole new class of minimum mandatory sentences. Prior to 1996, an offender
designated “habitual” by virtue of section 4214(a) could be sentenced “up to” life in prison, but
the precise sentence was left to the discretion of the sentencing judge. Under the 1996
amendment, any offender being sentenced for a fourth felony that is considered a “violent
felony” must be given the statutory maximum sentence. And, therefore, the legislature needed a
specific list of “violent felonies” which section 4201(c) provided. (CONT’D)

                                                3
       The Court is mindful that the Truth in Sentencing Guilty Plea form listed the

“statutory penalty” as “5 or 10-15” meaning, essentially, that the minimum

sentence was “either” 5 or 10 to 15 years in prison. Defendant now tells us that he

thought he had the argument won – that because he knew the drug conviction was

not a violent felony in New Jersey, he would not face the 10 year minimum

sentence for 2 violent felony convictions.

       Thus, as stated, the Court believes it would have been wiser to not accept

such an open ended guilty plea in which neither the State nor the defense knew

whether Defendant would be required to serve a 5 year or a 10 year minimum

        But in defining the term, the General Assembly took the broadest possible view as to
what constitutes a “violent felony.” So while some obvious crimes like murder and violent
assaults are on the list, some unusual characters were also included: crimes like extortion, non
violent escapes from work release, stalking and racketeering. None of these are exactly desirable
behaviors, but none of them are fundamentally “violent.” The General Assembly cast an even
broader net with respect to drug crimes. Delivery of drug paraphernalia to a minor, delivery of a
non-controlled substance or a non-controlled prescription drug and possession of drugs within
1000 feet of a school were all classified as “violent” felonies. In doing so, whole swaths of drug
offenders were swept up in a category of “violent” felons and now subject to minimum
mandatory sentences by virtue of their prior convictions under 11 Del. C. § 4214(a).
       This all has a direct effect on this case, because when the General Assembly amended 11
Del. C. § 1448 – the person prohibited law – in 2013, 79 Del. Laws ch. 124, §1 (2013), the
General Assembly doubled and tripled the mandatory sentences previously applicable if the
offender had prior convictions for a “violent felony.” Thus, our illogically broad definition of
“violent felony” in section 4201(c) impacts both habitual offender sentencing under section 4214
and our “felon in possession” charge in section 1448 in very dramatic fashion.
       There are indications that some measure of temperance is softening the legislature’s
enthusiasm for these laws. In 2014, the General Assembly retreated in the area of drug offenses,
removing “aggravated possession” from the list. And just last month, the Attorney General
announced an effort to curtail the deployment of habitual offender sentencing. See Matt Denn,
Attorney General, Remarks to Wilmington Rotary Club (Oct. 15, 2015). It may be that our 20
year experiment with the proposition that mandatory jail sentences curtail behavior on the street
is coming to an end, but obviously it will be too late to be of any use to Defendant here.

                                                4
sentence. The Court appreciates that in the sometimes rough and tumble world of

criminal calendars the parties may be content to “put a thumb tack in it” and circle

back to the issue after the presentence office has completed its background check.

But we are not here simply calculating the priors for informational purposes. The

“drug prior” in New Jersey has a direct and profound impact on where Defendant

will reside for five years of his life. The Court appreciates that the parties knew

there was an issue “out there” regarding Defendant’s prior record. But the Court is

not satisfied that deferring that issue to the sentencing calendar was a wise course,

particularly when the consequences are so profound for Defendant.

       The State has alleged prejudice insofar as it will have to “prepare” the case

for trial, but has not otherwise articulated prejudice. If this were, for example, an

assault case involving a recalcitrant witness, the Court would have more sympathy

for the State’s prejudice argument. But this is a very simple case involving a car

stop by the police and the discovery of a handgun. The State can put the evidence

on via its police witness in short order and its claim of prejudice is not well taken,

at least in this case.

       The Court will permit Defendant to withdraw his guilty plea under these

circumstances. Better to permit pleas and impose sentences pursuant to the plea

when all parties are fully informed of all the ramifications than to accept pleas with

contingencies involving 5 years of incarceration hanging in the balance.


                                          5
Trial will be scheduled accordingly.


IT IS SO ORDERED.


                                       /s/ Charles E. Butler
                                       Judge Charles E. Butler




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