     IN THE SUPREME COURT OF THE STATE OF DELAWARE

HARRY W. ANDERSON,                     §
                                       §      No. 505, 2013
      Defendant Below,                 §
      Appellant,                       §      Court Below–Superior Court of
                                       §      the State of Delaware in and for
      v.                               §      New Castle County
                                       §
STATE OF DELAWARE,                     §
                                       §
      Plaintiff Below,                 §      Cr. ID No. 1206018361
      Appellee.                        §

                          Submitted: May 2, 2014
                          Decided:   July 14, 2014

Before STRINE, Chief Justice, BERGER and RIDGELY, Justices.

                                 ORDER

      This 14th day of July 2014, upon consideration of the parties’ briefs

and the Superior Court record, it appears to the Court that:

      (1)    This is a direct appeal in a Superior Court criminal case. On

February 14, 2014, the appellant, Harry W. Anderson, was granted leave to

proceed pro se on appeal. Because Anderson’s claims on appeal are related

to two Court of Common Pleas (“CCP”) criminal cases in which he was

involved in 2012 and 2013, the Court has taken judicial notice of those cases

and briefly summarized them below.
          (2)    In the 2012 CCP case, Anderson was arrested on June 8, 2012

on charges of Resisting Arrest and Criminal Trespass in the Third Degree.1

Anderson pled guilty to Resisting Arrest on September 13, 2012, but was

allowed to withdraw the plea on December 4, 2012. On February 21, 2013,

the case was dismissed, and on June 6, 2013, a cell phone and other property

seized from Anderson incident to his arrest were returned to him.2 In the

2013 CCP case, Anderson was arrested on August 6, 2013 on charges of

Burglary in the Third Degree, Possession of a Burglary Tool, Misdemeanor

Theft, and Criminal Mischief.3 The case was dismissed on September 23,

2013.4

          (3)    In the Superior Court case from which this appeal arises,

Anderson was arrested on June 22, 2012, and was indicted on September 24,

2012, on multiple counts of Felony Theft, Burglary in the Third Degree, and

Criminal Mischief.          On January 24, 2013, after an extended colloguy,

Anderson pled guilty to two counts of Burglary in the Third Degree. In

exchange the State dismissed the balance of the indictment, agreed to seek

habitual offender sentencing on only one count, and recommend no more


1
    See docket, State v. Anderson, Del. Com. Pl., Cr. ID No. 1206005682.
2
    Id.
3
    See docket, State v. Anderson, Del. Com. Pl., Cr. ID No. 1301012923.
4
    Id.

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than six years at Level V on that count. The parties further agreed to a

presentence investigation.

       (4)    Thereafter, between April 10, 2013 and September 9, 2013,

subsequent to his guilty plea but prior to his sentencing, Anderson filed a

series of pro se letters, motions, and a habeas corpus petition. Generally,

Anderson’s pro se submissions sought a dismissal of the Superior Court

charges because, according to Anderson, the evidence against him was the

same evidence that, according to Anderson, was illegally seized in his 2012

and 2013 CCP cases.5

       (5)    Anderson’s sentencing was held on September 20, 2013. At the

outset of the sentencing proceeding, the Superior Court allowed Anderson to

make an oral motion to withdraw his guilty plea. When asked to give his

reasons for withdrawing the plea, Anderson asserted that he “was totally

under duress” at the January 24, 2013 guilty plea proceeding because his



5
  Anderson’s April 10, 2013 “motion to suppress by use of the exclusionary Rule and to
dismiss” was referred to his defense counsel. Anderson’s April 23, 2013 motion to
suppress was referred to a Superior Court judge, who returned the motion with a “notice
of noncompliance” indicating that an application for a postconviction remedy must be
filed using a prescribed form, which was also provided. In letters filed on June 13 and
June 19, 2013, Anderson complained that his defense counsel’s refusal to file a motion to
suppress and to take other action had left Anderson with no choice but to plead guilty.
Anderson’s June 2013 letters were followed by his unsuccessful habeas corpus petition
on August 12, 2013, which sought a dismissal of the charges “for failure to indict in a
timely fashion.” Finally, on September 9, 2013, Anderson submitted another letter,
which summarized, reiterated and expanded upon the issues raised in his prior letters,
motions, and petition.
                                           3
defense counsel had refused to file a motion to suppress and to take other

action in support of his defense.6 Anderson also asserted that withdrawal of

the guilty plea was justified because his defense counsel had a conflict of

interest.7 After hearing from Anderson and his defense counsel, the Superior

Court found that Anderson had given the guilty plea knowingly,

intelligently, and voluntarily on January 24, 2013, and denied the motion to

withdraw the guilty plea.8

          (6)      The Superior Court sentenced Anderson in accordance with the

plea agreement. On one count of Burglary in the Third Degree, Anderson

was declared a habitual offender and was sentenced to six years at Level V.

On the other count of Burglary in the Third Degree, Anderson was sentenced

to three years at Level V suspended for eighteen months at Level III

probation. This appeal followed.

          (7)      On appeal, Anderson argues that the Superior Court’s denial of

his motion to withdraw the guilty plea was an abuse of discretion. Anderson

argues that withdrawal of the plea was justified because he was not indicted

within forty-five days of his arrest, and because the evidence relied upon

was derived from the 2012 CCP case, which was dismissed. Anderson also

6
    H’rg Tr. at 7 (Sept. 20, 2013).
7
    Id. at 10.
8
    Id. at 9-10.

                                           4
argues that the plea agreement was invalid because it was improperly altered

to include restitution related to a burglary charge in the 2013 CCP case,

which was also dismissed. Finally, Anderson contends that the guilty plea

was involuntary because he was coerced into pleading guilty by his defense

counsel, who had a conflict of interest.

          (8)    We review the denial of a motion to withdraw a guilty plea for

abuse of discretion.9 Under Superior Court Criminal Rule 32(d), a defendant

has the burden of showing a “fair and just reason” to withdraw a guilty

plea.10 The Superior Court should permit the withdrawal of a guilty plea

only if the court determines that “the plea was not voluntarily entered or was

entered because of misapprehension or mistake of defendant as to his legal

rights.”11

          (9)    In this case, we have carefully reviewed the parties’ briefs and

the Superior Court record, including the transcripts of the guilty plea

proceeding on January 24, 2013, and the hearing on the motion to withdraw

the guilty plea on September 20, 2013. The transcript of the guilty plea

proceeding reflects that Anderson clearly and unequivocally admitted that he


9
    Chavous v. State, 953 A.2d 282, 285 (Del. 2008).
10
     Del. Super. Ct. Crim. R. 32(d).
11
  Scarborough v. State, 938 A.2d 644, 650 (Del. 2007) (quoting State v. Insley, 141 A.2d
619, 622 (Del. 1958)).

                                             5
committed the offenses of Burglary in the Third Degree.12 Anderson that he

had discussed his plea agreement and the truth-in-sentencing guilty plea

form with his defense counsel, and that his defense counsel had answered all

of his questions and had advised him of his legal rights.13 Anderson also

said that he was satisfied with his defense counsel’s representation.14

Finally, Anderson said he was entering into the plea agreement of his own

free will,15 and said that no one had threatened or coerced him to accept the

plea.16

           (10) From our review of the record, we can discern no basis upon

which to conclude that Anderson’s guilty plea was not voluntarily entered or

was entered because of Anderson’s misapprehension or mistake as to his

legal rights. Moreover, because a knowing and voluntary guilty plea waives

any defenses a defendant might have had, we conclude that Anderson’s

challenges to the sufficiency of the evidence, the legality of the search, and

the timeliness of the indictment are without merit. 17



12
     Hr’g Tr. at 12 (Jan. 24, 2013).
13
     Id. at 9-10.
14
     Id. at 14.
15
     Id. at 13.
16
     Id.
17
  See Powell v. State, 2010 WL 572129 (Del. Feb. 18, 2010) (citing Miller v. State, 840
A.2d 1229, 1232 (Del. 2003)).

                                          6
          (11) Anderson’s claims that his defense counsel had a conflict of

interest and that he was improperly required to pay restitution on a burglary

charge in the 2013 CCP case are also without merit. Those claims, and the

others raised in Anderson’s numerous pro se letters, motions and petition,

suggest that, as his 2012 and 2013 CCP cases evolved, Anderson began to

have second thoughts about his decision to plead guilty in his Superior Court

case on January 24, 2013. Having second thoughts about accepting a plea

agreement, however, does not constitute a “fair and just reason” for

withdrawing a guilty plea.18

          NOW, THEREFORE, IT IS ORDERED that the judgment of the

Superior Court is AFFIRMED.

                                       BY THE COURT:

                                       /s/ Henry duPont Ridgely
                                       Justice




18
     Russell v. State, 1999 WL 507303 (Del. June 2, 1999).

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