      IN THE SUPERIOR COURT OF THE STATE OF DELAWARE
                IN AND FOR NEW CASTLE COUNTY

STATE OF DELAWARE                 )
                                  )
    v.                            )         Cr. ID No. 1210020252
                                  )
JORGE MARTINEZ,                   )
                                  )
        Defendant.                )
                   Date Submitted: October 30, 2015
                   Date Decided: November 3, 2015

             Upon Defendant’s Motion to Withdraw the Guilty Plea
                                DENIED

      Upon consideration of Defendant’s Motion to Withdraw Guilty Plea, the

Court makes the following findings:


      1. On March 10, 2015, Defendant was arrested on charges of Drug Dealing

of a Tier 4 Quantity, Aggravated Possession of Heroin of a Tier 4 Quantity, and

Possession of Drug Paraphernalia. Counsel was appointed to represent Defendant.


      2. Defendant appeared before the Court on May 6, 2015 and plead guilty.

The negotiated plea included Defendant’s guilty plea to one count of Drug Dealing

Heroin of a Tier 4 Quantity and Violation of Probation, in exchange for which the

State agreed to dismiss the remaining charges: Aggravated Possession of Heroin of

a Tier 4 Quantity and Possession of Drug Paraphernalia.
      3. The matter was scheduled for sentencing but, before Defendant was

sentenced, Defendant filed a motion to withdraw his guilty plea on September 28,

2015. The State opposes Defendant’s motion.

      4. Superior Court Rule of Criminal Procedure 32(d) allows for withdrawal of

a defendant’s guilty plea if the defendant demonstrates that a fair and just reason

exists for doing so. 1 It is the defendant’s burden to satisfy the requirements of

Rule 32(d) and to provide the Court with sufficient evidence to demonstrate a fair

and just reason for withdrawing defendant’s guilty plea.2 The decision to grant a

motion to withdraw a guilty plea is within the sound discretion of the Court.3 The

Court will grant the motion only if the plea was either not made voluntarily or was

entered because defendant misapprehended or was mistaken as to his legal rights.4

      5. In deciding a motion to withdraw a guilty plea, the Court must consider

five factors: (1) whether there was a procedural defect in taking the plea; (2)

whether the defendant knowingly and voluntarily consented to the plea; (3)

whether there is any present basis to assert legal innocence; (4) whether defendant

had adequate legal representation throughout the proceedings; (5) whether granting

the motion would prejudice the State or unduly inconvenience the Court.5 The

1
  Super. Ct. Crim. R. 32(d).
2
  State v. Friend, 1994 WL 234120, at *1 (Del. Super. May 12, 1994) (quoting Blackwell v.
State, 736 A.2d 971, 972 (Del. 1999).
3
  Scarborough v. State, 938 A.2d 644, 649 (Del. 2007)
4
   Smith v. State, 451 A.2d 837, 839 (Del. 1982).
5
  Scarborough, 938 A.2d at 649.
                                           2
Court need not balance these factors, and one factor standing alone may be

sufficient to grant the motion.6

       6. In support of his motion, Defendant argues that he did not enter the plea

knowingly, intelligently, and voluntarily because of untreated anxiety (factor 2)

and granting the motion would not result in prejudice to the State or burden on the

Court (factor 5).

       7. Although Defendant argues that his plea was involuntary because of

untreated anxiety, Defendant fails to explain how his untreated anxiety affected his

ability to understand the proceedings on May 6, 2015. To the contrary, the record

evidence establishes that Defendant’s acceptance of the plea offer on May 6, 2015

was knowing, intelligent, and voluntary. The Court engaged in a colloquy with

Defendant, in which Defendant acknowledged that he was giving up his right to be

indicted,7 that he was giving up his trial rights, 8 that he was facing at least two (2)

years minimum mandatory in prison and a maximum of life imprisonment.9

Defendant indicated that he had discussed this matter carefully with his attorney, 10

and that he was accepting responsibility for Drug Dealing of a Tier 4 Quantity.11



6
  Id.
7
  Plea Colloquy at 5:10-6:4; 7:1-3.
8
  Id.
9
  Plea Colloquy at 6:18-23.
10
   Plea Colloquy at 6:14.
11
   Plea Colloquy at 6:9-11.
                                           3
The Court accepted Defendant’s guilty plea as a knowing, intelligent, and

voluntary waiver of Defendant’s constitutional trial rights.

          8. Defendants are “bound by those statements” made during the plea

colloquy and on guilty plea forms “in the absence of clear and convincing proof to

the contrary.” 12 Defendant has not provided any evidence sufficient to satisfy the

“clear and convincing” standard required by Delaware law to make a showing that

his plea was involuntary.

          9. The State would be prejudiced if Defendant was permitted to withdraw his

guilty plea. Defendant’s arrest was on March 10, 2015. If Defendant’s motion is

granted, the State will have to indict this matter and have the drugs at issue tested.

Further, the passage of time could compromise witnesses’ memories for both

civilian and police witnesses.

          NOW, THEREFORE, this 3rd day of November, 2015, Defendant Jorge
Martinez’s Motion to Withdraw Guilty Plea is hereby DENIED.

          IT IS SO ORDERED.
                                                      Andrea L. Rocanelli
                                                      _____________________________
                                                      The Honorable Andrea L. Rocanelli




12
     Krafchick v. State, 100 A.3d 1021, *2 (Del. 2014); Smith v. State, 571 A.2d 788 (Del. 1990).
                                                  4
