      IN THE SUPERIOR COURT OF THE STATE OF DELAWARE

                   IN AND FOR NEW CASTLE COUNTY

                                     )
STATE OF DELAWARE                    )
                                     )     I.D. No. 1405001074
      v.                             )
                                     )
JERRY SHORTS,                        )
                                     )
                  Defendant.         )


                         Submitted: November 30, 2015
                          Decided: December 1, 2015

           On Defendant’s Amended Motion to Withdraw Guilty Plea.
                                DENIED.

                                   ORDER
Sonia Augusthy, Esquire, Deputy Attorney General, Department of Justice,
Wilmington, Delaware, Attorney for the State.

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

COOCH, R.J.

    This 1st day of December, 2015, upon consideration of Defendant’s
Amended Motion to Withdraw Guilty Plea, it appears to the Court that:

      1.    On May 2, 2014, Jerry Shorts (“Defendant”) was arrested and charged
            with Continuous Sexual Abuse of a Child in violation of 11 Del. C. §
            776, and four counts of Sexual Abuse of a Child First Degree in
            violation of 11 Del. C. § 778. On February 23, 2015, Defendant
            entered a guilty plea to an amended charge of Rape Fourth Degree.
       2.     On October 27, 2015, Defendant, through counsel, filed an Amended
              Motion to Withdraw Guilty Plea (“Motion”). 1 Defendant states that:

                      [a]t [the] case review on November 24, 2014, Defendant accepted
                      a plea to Rape 4 before the Honorable Richard R. Cooch rather
                      than risk a worse outcome at trial based on circumstantial
                      evidence.

                      During the PSI, Investigative Services asked the victim if the
                      Defendant had any identifying marks (information not requested
                      by the investigating officer). The victim mentioned a mole but
                      could not recall the location (Defendant has a mole on his
                      shoulder that would have been visible under normal
                      circumstances). Defendant suffers from server psoriasis [on his
                      genitalia] which has been confirmed both visually and through
                      medical records which Defendant suggests would certainly have
                      been visible during the type of contact the victim alleges.
                      Previously, this information would only have been available to
                      defense through cross-examination. Defendant indicates that if he
                      had that information at the time of the plea he would not have
                      accepted the State’s offer.

                      Defendant asserts that it could not be a knowing, intelligent and
                      voluntary plea if a material fact in the case was not known to him
                      or defense counsel at the time of the plea. 2


       3.     ‘“The decision whether or not to permit a defendant to withdraw a
              guilty plea is within the sound discretion of the trial court.’” 3 The
              Court may grant a motion to withdraw a guilty plea for any fair and just
              reason.4 In evaluating whether any fair and just reason exists to allow a
              defendant to withdraw his guilty plea, the Court will weigh five factors:

                      (1) Was there a procedural defect with the plea;

1
  Defendant filed his original Motion to Withdraw Guilty Plea on September 3, 2015. The
amended Motion filed in October mirrors the original Motion, and includes additional details in
support of the Motion. At a conference held on November 16, 2015, counsel for Defendant
stated that he was content to have the Amended Motion to Withdraw Guilty Plea decided on the
present record.
2
  Def’s. Am. Mot. to Withdraw Guilty Plea ¶¶ 2-4 (emphasis in original).
3
  State v. Phillips, 2007 WL 3105749 at* 1 (Del. Super. Sept. 20, 2007) (quoting Brown v. State,
250 A.2d 503, 504 (Del. 1969)).
4
  Super. Ct. Crim. R. 32(d).


                                               2
                      (2) Whether the defendant knowingly and voluntarily consented
                          to the plea agreement;

                      (3) Whether there is a present basis for the defendant to assert
                          legal innocence;

                      (4) Did the defendant have adequate legal counsel during the
                          proceedings; and

                      (5) Will granting the motion prejudice the State or unduly
                          inconvenience the Court.5

       4.     “Only where the judge determines that ‘the plea was not voluntarily
              entered or was entered because of misapprehension or mistake of
              defendant as to his legal rights’ should the judge grant the defendant’s
              request to withdraw his guilty plea.”6 “A defendant’s statements to the
              Superior Court during the guilty plea colloquy are presumed to be
              truthful.”7 The burden is on the defendant to show that a plea was not
              entered into voluntarily. 8

       5.     On February 23, 2015, Defendant signed the Guilty Plea form and
              Plea Agreement and entered into athorough colloquy with this Court.
              As part of his plea agreement, Defendant agreed to plead guilty to one
              count of an amended charge of Rape Fourth Degree in violation of 11
              Del. C. § 770. Defendant also agreed to have no contact with the
              victim and have a pre-sentence investigation conducted. During his
              plea colloquy, Defendant was asked, among other things,:

                      THE COURT: Are you Jerry Shorts?

                      THE DEFENDANT: Yes, sir.

                      THE COURT: Did you sign the guilty plea form after reviewing
                      it carefully with your attorney, Mr. Rosen?


5
  Scarborough v. State, 938 A.2d 644, 649 (Del. 2007) (citing Patterson v. State, 684 A.2d 1234,
1239 (Del. 1996)).
6
  Id. at 650 (quoting State v. Insley, 141 A.2d 619, 622 (Del. 1958).
7
  Somerville v. State, 703703 A.2d 629, 632 (Del. 1997).
8
  Id.


                                               3
                          THE DEFENDANT: Yes, sir . . . .

                          THE COURT: Has your lawyer, the State or anyone threatened
                          or forced you to enter this plea?

                          THE DEFENDANT: No, sir.

                          THE COURT: Do you understand that because you are pleading
                          guilty, you will not have a trial and you, therefore, waive or give
                          up certain constitutional rights?

                          THE DEFENDANT: Yes, sir.

                          THE COURT: Do you understand that those constitutional rights
                          include . . . [the right] to hear and question the witness against
                          you?

                          THE DEFENDANT: Yes, sir . . . .

                          THE COURT: Do you believe that you are knowingly,
                          voluntarily, and intelligently entering a plea of guilty to this
                          charge?

                          THE DEFENDANT: Yes.

                          THE COURT: Do you understand that what’s being done today
                          is final, meaning that you will not be able to come back at any
                          later time to seek to withdraw your guilty plea?

                           THE DEFENDANT: Yes, sir. 9

          6.      Defendant cannot show the first or second factors. During the plea
                  colloquy, Defendant acknowledged that he reviewed the plea
                  agreement with his attorney. He stated that his decision was not
                  threatened or forced and he acknowledged that he understood he was
                  giving up certain constitutional rights. Specifically, Defendant stated
                  that he recognized the fact that he was giving up the right to “hear and
                  question witnesses against [him].” Defendant also stated that he
                  understood that his entry of a guilty plea was final and he would not
                  be permitted to withdraw that plea at a later time.



9
    Tr. of Plea Hr’g at 4, 5, 6, 9.


                                                   4
       7.     Similarly, Defendant has failed to demonstrate the third factor,
              weighing whether the defendant is now able to assert his innocence.
              Defendant has not shown that he actually has psoriasis, when he
              contracted the aliment, or that he was experiencing a “flare up” at a
              time that would have allowed the victim to notice it. 10

       8.     Defendant is also unable to demonstrate the fourth factor. His
              attorney was competent in negotiating a successful plea agreement
              and reductions in both his sentencing risk and sex offender tier. “[A]t
              [the] case review on November 24, 2014, Defendant accepted a plea
              to Rape 4 before the Honorable Richard R. Cooch rather than risk a
              worse outcome at trial based on circumstantial evidence.” 11

       9.     Finally, the State and Court would likely be prejudiced by allowing
              Defendant to withdraw his guilty plea. The State need not show that it
              would suffer any prejudice when a defendant is unable to demonstrate
              the other factors.12 The Court would be unduly inconvenienced
              because it would be forced to expel more judicial resources than have
              already been consumed.

       10.    Defendant failed to demonstrate a any fair and just reason for
              withdraw of his guilty plea simply because he now is aware of
              potentially-favorable evidence.

Therefore, Defendant’s Motion for Postconviction Relief is DENIED.
      IT IS SO ORDERED.

                                                               ______________________
                                                               Richard R. Cooch, R.J.

cc:    Prothonotary
       Investigative Services


10
   “The disease includes symptoms that ‘often disappear (go into remission), even without
treatment, and then return (flare up).”’ Resp. of the State of Delaware to Def’s. Am. Mot. to
Withdraw Guilty Plea at 6 (quoting Psoriasis Causes, Symptoms, Treatments, WebMD,
November 30, 2015, http://www.webmd.com/skin-problems-and-treatments/psoriasis/psoriasis-
topic-overview).
11
   Def’s. Am. Mot. to Withdraw Guilty Plea ¶ 2.
12
   State v. Barksdale, 2015 WL 5676895 at* 6 (Del. Super. Sept. 14, 2015) (citations omitted).


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