IN THE SUPERIOR COURT OF THE STATE OF DELAWARE
IN AND FOR NEW CASTLE COUNTY
STATE OF DELAWARE
I.D. No. 0004015109
December 1, 2002
January 2, 2003
UPO N DE FEN DAN T'S M OTIO N FO R PO STC ONV ICTIO N RE LIEF .
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:
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.
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.
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.
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
See transcript of office conference before J. Gebelein, Nov. 26, 2001, p. 5-6.
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
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
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.
a defendant has been convicted based on a guilty plea, double jeopardy will preclude a
subsequent convic tion for the sam e offe nse.
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.
Id. at 5.
U.S. Const., Amend. V; Del. Const., art. I, § 8.
Tarr v. State , 486 A.2d 672, 674 (Del. 198 4)(Citations omitted).
Id. (Citations omitted).
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.
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
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
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.
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
Robert S cott