State of Delaware v. Scott.

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IN THE SUPERIOR COURT OF THE STATE OF DELAWARE IN AND FOR NEW CASTLE COUNTY ) ) ) ) ) ) ) ) ) STATE OF DELAWARE v. ROBERT SCOTT, Defend ant. Submitted: Decided: I.D. No. 0004015109 December 1, 2002 January 2, 2003 ORDER UPO N DE FEN DAN T'S M OTIO N FO R PO STC ONV ICTIO N RE LIEF . SUMMARILY DISMISSED. This 2 nd day of January, 2003, upon consideration of the Defendant's Motion for Postconviction Relief pursuant to Superio r Court C riminal Ru le 61 and th e record in th is case, it appea rs that: (1) On April 2, 2002, De fendant, R obert L. Sc ott, pleaded g uilty to Aggravated Menacing. On June 14, 2002, the Court sentenced Defendant to two years Level 5 incarceration, suspended after serving fifteen mo nths for decreasing levels of probation. (2) Defendant has now filed the above-captioned M otion for P ostconviction Relief. In suppor t of his mo tion, Defe ndant lists as ground s for relief cla ims of do uble jeop ardy, coerced guilty plea, and unfulfilled plea agreement. This is Defendant s first motion for postconviction relief and the Court has d etermined that no proc edural bars apply. Therefore, the Court may consider the merits of Defendant s motion. (3) Defendant s initial ground for relief, double jeopardy, alleges that the Court dismissed all pending charges against him on November 20, 2001 during a call of the criminal trial calendar. Although Defendant does not elaborate further, the Court interprets his claim to argu e that his guilty plea to charges th at were pre viously dismiss ed subjecte d him to doub le jeopa rdy. (4) Review of the reco rd in Def endant s case show s that this Court did indeed dismiss Defendant s charges. However, the record also shows that the Court vacated the order dismissing Defendant s case on November 27, 2001 and directed that the case be set for trial. 1 During a conf erence with the State an d Defendan t s counsel, the Court explained that it had previously granted defense counsel s oral motion to dismiss Defen dant s charges because the State represented that the victim had not appeared for trial and that it was therefore not ready to proceed with a trial. After the case was dismissed, it was determined that counsel was in error and that the victim was present in the courtroom at the time. The 1 See transcript of office conference before J. Gebelein, Nov. 26, 2001, p. 5-6. 2 Court stated that, but for the misunderstanding that the victim was not present for trial, the case against Defendant would not have been dismissed.2 (6) The Cou rt fin ds th at, by d ismissing Defendant s charges and then vacating that dismissal, which resulted ultimately in Defendant s guilty plea, does not constitute double jeopardy. Both the United States and Delaware constitutions provide that no person shall be twice put in jeopardy of life or limb for the same offen se. 3 The effect of the double jeopardy clause is to afford c riminal def endants against a second prosecution for the same offense after acquittal or conviction and to pro tect against m ultiple punish ments for the s ame o ffense . 4 (7) In a crimin al proce eding, jeopardy attaches when a jury has been impaneled and sw orn or w hen the first witn ess has been sw orn in a non-ju ry trial. 5 Where a defendant has been convicted based on a guilty plea, double jeopardy will preclude a subsequent convic tion for the sam e offe nse. 6 In the instant case, jeopar dy did not attach in the proceedings against Defendant until he entered his guilty plea. Therefore, when the Court dismissed his charges a week earlier, jeopardy had not attached and reinstatement of thos e cha rges did n ot violate the p rohibitio ns ag ainst dou ble je opardy. 2 Id. at 5. 3 U.S. Const., Amend. V; Del. Const., art. I, § 8. 4 Tarr v. State , 486 A.2d 672, 674 (Del. 198 4)(Citations omitted). 5 Id. (Citations omitted). 6 Id. 3 (8) In addition, the Court also notes that Superior Court Criminal Rule 48(b) provides, if there is unnecessary delay in bring a defendan t to trial, the court may dismiss the indictment, information or com plaint. In the instant case, the Court based its dismissal on the mistake n belief that th e victim had not appea red and tha t the State was unable to proceed in the victim s absence. Bu t for that mistake, the Court would not have exercised its discretion to d ismiss Def endant s ch arges. The mistake w as quickly realize d by the defense and the dismissal vacated seven days later. As a result, the Court cannot find that Defendant suffered any prejudice as a result of the erroneous dismissal of his charges. Therefore, for the foregoing reasons, the Court finds that Defendant s first ground for relief is without m erit. (9) Defendant s second ground for relie f, coe rced gu ilty plea, alleges that his defense counsel, knowing that the court d ismisse d all cha rge(s) . . . told me I could not win at trial and to plea guilty so that I would get probation. As detailed above, on the date Defendant entered his plea, the Court had vacated the order dismissing the charges against him so that his attorney did not advise him to enter a plea to charges that were no longer valid. (10) Also, on his guilty plea form, Defendant indicated that he freely and voluntarily decided to plead guilty to the charges listed in the plea agreement, that no one had promised him anything not stated in th e plea agre ement, and that no one , including h is attor ney, threatened or forced him to enter the plea. Defendant averred that he was satisfied 4 with his lawyer s rep resentation o f him and that his lawyer had fully advised h im of his righ ts and of the guilty plea. Review of the guilty plea colloquy transcript also supports the Co urt s finding that Defendant knowingly and voluntarily entered into his guilty plea. Therefore, the Court find s that Defe ndant s sec ond grou nd for relief also is witho ut merit. (11) Defendant s final ground for relief, unfulfilled plea agreement, claims that his attorney and the State agreed that Defendant would plea guilty and be placed on probation. Also, Defendant [sic] plea was signed knowing probation would be the s entenc e. Despite Defendant s claim that he was promised a sentence of probation, review of the guilty plea forms and the plea colloquy transcript do not show any evidence of a promised probationary sentence. Defendant s signed plea agreement indicates only that a presentence investigation was reco mmend ed by the State . No othe r sentence re comme ndation is specified. Defendant indicated on the guilty plea form and during the plea colloquy that no one had prom ised him w hat his senten ce wou ld be. As a r esult, the Co urt finds that Defendant understood the terms of his guilty plea, including the sentencing possibilities. The Court find s that Defe ndant s fin al ground for relief also is without m erit. Therefore, because the Court finds that it is plain from the Motion for Postconviction Relief and the record in this case tha t Defend ant is not entitled to relief, the motion is hereby SUMMARILY DISMISSED. IT IS SO ORDERED. ___________________________ Carl Goldstein, Judge oc: cc: Prothonotary Robert S cott 5

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