           IN THE SUPERIOR COURT OF THE STATE OF DELAWARE

STATE OF DELAWARE,                         :
                                           :      ID No. 1504020148
                                           :      In and For Kent County
      v.                                   :
                                           :
MARQUIS BOYER-SMITH,                       :
                                           :
             Defendant.                    :

                                       ORDER

      On this 6th day of April, 2016, upon consideration of the Defendant’s Motion
For Postconviction Relief filed pursuant to Superior Court Criminal Rule 61, the State’s
opposition, and the record in this case, it appears that:
      1. Defendant Marquis D. Boyer-Smith (hereinafter “Boyer-Smith”) pled guilty
to one count of Possession of a Firearm During the Commission of a Felony on August
6, 2015. He seeks relief from his guilty plea because he was not placed in the Sussex
Correctional Institution (hereinafter “SCI”) as provided in the original Sentence Order.
He remains incarcerated at James T. Vaughn Correctional Center (hereinafter
“JTVCC”) in its Secured Housing Unit (hereinafter “SHU”).
      2. This plea was a result of a plea agreement between the State and Boyer-
Smith. It provided that “[t]he State will recommend (and will ask the Court to
recommend) that the defendant serve the Level 5 portion of his sentence at S.C.I.”.
The sentence provided, among other things, that Boyer-Smith will serve three years of
unsuspended Level V time, followed by a probationary period imposed pursuant to 11
Del. C. § 4202(l).
      3. The Deputy Attorney General assigned to the case also stated in open Court
before the plea, with Boyer-Smith present, that “the State is recommending and I think
the defense is going to request that the Court recommend that he serve his Level V
portion of his sentence at Sussex Correctional. It’s not necessarily binding on DOC .
I am just respectfully asking the Court to recommend that.”
      4. As a result, when sentencing Boyer-Smith, the Court stated on the record that
“the Court requests that the Department of Correction direct that the defendant serve
the Level V portion of his sentence at Sussex Correction Institute. Also, the defendant
is ordered to complete the Key Program while serving his Level V incarceration.” The
Court’s August 6, 2015 written Sentence Order, however, mandated that Boyer-Smith
serve the Level V Time portion of his sentence at SCI. The Sentence Order also
required Boyer-Smith to complete the Key Program while at Level V. This particular
inpatient drug treatment program is available only at SCI.
      5. Thereafter, on August 19, 2015, the Classification Unit informed the Court
by letter that because Boyer-Smith assaulted a correctional officer with a cup of urine
and had received over twenty Class I write-ups, Correction policy required him to be
reclassified to maximum security. Accordingly, he was classified to JTVCC’s SHU
since no such maximum security housing exists at SCI. Apparently unbeknownst to
the attorneys and the Court at the time of the plea, the incident involving the assault on
an officer occurred on July 18, 2015, which preceded the plea. Namely, Boyer-Smith
was already housed at the SHU by the time of his plea.
      6. After receipt of the letter and a request from the Defendant, the Court set a
review of sentence for October 2, 2015. At the sentence review, both Lieutenant Mark
Daum and Classification Officer Jackson provided the Department of Correction’s
position. Officer Jackson testified that Boyer-Smith’s risk assessment score, based on
numerous violations, requires that he be housed in maximum security. His violations
included substance abuse with pills stuffed in a mattress, numerous incidents of

                                            2
disrespect and threats toward correctional officers, destruction of prison property, and
assault of a correctional officer. Correction policy mandates two years in maximum
security for a staff assault. Boyer-Smith’s position at the sentence review was limited
to his argument that he has been singled out for unfair treatment by correctional staff.
      7. Lieutenant Daum, who was present during the staff assault in July, also
provided information to the Court. He indicated he was present in July 2015 when
Boyer-Smith threw a cup of suspected urine into a uniformed officer’s face. At that
point, Boyer-Smith refused to leave his cell and had to be forcibly extracted. Boyer-
Smith then broke the sprinkler in his cell creating a flooding incident. As a result of
the review of sentence, the Court modified its sentencing order, removing the provision
requiring Boyer-Smith’s placement at SCI.
      8. Thereafter, Boyer-Smith requested that the Court permit him to withdraw his
guilty plea and he filed a motion requesting the same. Pursuant to Superior Court
Criminal Rule 32(d), since Boyer-Smiths request to withdraw his guilty plea was made
after sentencing, his “plea may be set aside only by motion under Rule 61.”
Accordingly, the Court denied that motion without prejudice for Boyer-Smith to file a
Rule 61 motion seeking to withdraw the plea. Boyer-Smith thereafter filed a Rule 61
motion and the State filed a response opposed to the withdraw. At an office conference
to discuss a possible hearing, defense counsel indicated that he did not believe a
hearing was necessary and felt that the transcripts of the various proceedings created
a sufficient record for the Court’s consideration.
      9. The burden of proof for withdraw of a guilty plea, pursuant to a collateral
attack, is on the defendant. See Raison v. State, 469 A.2d 424, 425 (Del. 1983)(citing
the standard for withdraw of a guilty plea pursuant to Rule 32(d)). To gain relief, the
defendant must establish that his or her plea was not voluntary or was entered upon

                                           3
misapprehension or mistake as to his or her legal rights. Id. The Court’s decision
whether to conduct an evidentiary hearing in Rule 61 motions seeking to withdraw a
guilty plea is discretionary. State v. Khan, 2003 WL 21350336, at *3 (Del. Super.
June 2, 2003). Hearings are not automatic because “a defendant’s representations
during the guilty plea colloquy ‘pose a formidable barrier in any subsequent collateral
proceedings.’” Id. (citation omitted). Based on the clear record in this case and also
Boyer-Smith’s position that a hearing is not necessary, the Court has decided the matter
on the record without an evidentiary hearing.
      10. In this case, Boyer-Smith, engaged in the following colloquy with the Court
before entering his plea:
      Q: And are you aware that the Court is not bound by any agreement
      regarding sentencing that you may have made with the State up to this
      point in time?
      A: Yes, I do.
      Q: Has anyone forced you or threatened you to enter into this plea?
      A: No
Boyer-Smith also executed the Truth-in-Sentencing Guilty Plea Form prior to his plea.
He confirmed on the record, under oath, that he understood each of the questions and
answered them accurately. That form included the following relevant questions and
responses:
                                          ...

      Q: Have you freely and voluntarily decided to plea guilty to the charges
      listed in your written plea agreement?
      A: Yes
       Q: Has anyone promised you what your sentence will be?
      A: No.
                                        ...

      Q: Have you been promised anything not stated in your plea

                                           4
      agreement?
      A: No
The plea agreement expressly provided that SCI placement would be a
recommendation. The provision in the plea agreement was consistent with the
prosecution’s statement on the record before the plea noting that it was a
recommendation. Boyer-Smith clearly understood when he entered his plea that the
Court was not bound by any recommend placement. Accordingly, it was knowing and
intelligent. No one threatened or coerced him into entering the plea. It was also
voluntary.
      11. The original sentencing order contained mandatory language with regard
to this placement. Inmate classification is a discretionary matter for the Department of
Correction. Samans v. Department of Correction, 2015 WL 1421411, at *1 (Del.
March 27, 2015). As the Delaware Supreme Court has recognized, “[i]nmates do not
have a right to a particular prison classification, and ‘placement of inmates within the
prison system is within the wide spectrum of discretionary actions that traditionally
have been the business of prison administrators, rather than of the courts.” Id. (Citation
omitted).
      12. While the Court has sentencing authority to direct a placement of a
particular inmate, this case is a good illustration of why such practice should be used
sparingly. Department of Correction personnel have the day to day management and
responsibility of running the State’s prisons and ensuring the safety of their staff and
the other inmates. For that reason, wide discretion for the Department of Correction
is appropriate. This Court, would have been best advised in the circumstances of this
case, to provide in the written sentencing order that placement at SCI was
recommended rather than required. Nevertheless, it follows that if an inmate has no


                                            5
right to a particular classification, Boyer-Smith has no right to a post-conviction remedy
reversing his guilty plea because of a change in classification.
      13. The Court recognizes that such placement was important to Boyer-Smith.
He did not want to be housed in the SHU or at JTVCC for various reasons. Both
defense counsel and the prosecutor represented in the office conference, however, that
they had no knowledge of the assault on the correctional officer which occurred shortly
before the plea was entered. Boyer-Smith was in maximum security at that time and
hoped his sentence would provide a potential court override of Correction’s decision.
After considering the matter, holding the review of sentence, receiving input from DOC
personnel, and considering the arguments of the parties, the removal of the provision
from the sentence order was appropriate.
      14. The Court is satisfied that Boyer-Smith’s plea was knowing, intelligent, and
voluntary. He fully understood that the Court was not bound to place him at SCI as he
requested. Accordingly, his motion pursuant to Superior Court Criminal Rule 61 is
DENIED. The Key Program is housed exclusively at SCI, and the Department of
Correction indicates that Boyer-Smith will not be eligible for reclassification from
maximum security until at least July 2017. Since this would not leave sufficient time
to complete the Key Program, the Court will modify the sentence to change the
provision regarding specific Key placement to one providing for an alternative inpatient
drug treatment program while Boyer-Smith remains at Level V.
      IT IS SO ORDERED

                                                /s/Jeffrey J Clark
                                                     Judge




                                            6
