Clay v. State

• Court: Supreme Court of Delaware
• Decided: June 22, 2026
• Docket: 480, 2025
• Status: Published

Opinion

IN THE SUPREME COURT OF THE STATE OF DELAWARE

MARK T. CLAY, § § Defendant Below, § No. 480, 2025 Appellant, § § Court Below—Superior Court v. § of the State of Delaware § STATE OF DELAWARE, § Cr. ID No. 2301000219 (N) § Appellee. §

Submitted: April 23, 2026 Decided: June 22, 2026

Before SEITZ, Chief Justice; TRAYNOR and LEGROW, Justices.

ORDER

Upon consideration of the appellant’s Supreme Court Rule 26(c) brief, the

State’s response, and the record on appeal, it appears to the Court that:

(1) In 2023, a grand jury indicted Mark T. Clay for multiple sexual

offenses, including first-degree rape and continuous sexual abuse of a child. The

charges arose from Clay’s conduct with one of his children. After discovering child

pornography, which included images of this child, on Clay’s computer, the State

reindicted Clay to add multiple counts of dealing in child pornography.

(2) Clay filed a motion to suppress, arguing that the search warrants were

general warrants with no temporal limitations. Clay also argued that the search of

electronic devices he caused to be moved to his father’s house was not conducted within the ten-day period provided by the warrant. The court found that the warrants

were not general or overbroad but that the warrant to search the electronic devices

was executed outside of the ten-day window. The court ruled that the evidence

obtained from this warrant could not be used but stated that, if the State obtained and

timely executed a new warrant for the electronic devices, it would address any issues

arising from such a warrant.

(3) Clay also filed a motion to dismiss, asserting violation of his right to a

speedy trial, and a motion for severance of the child pornography charges. The

Superior Court denied both motions.

(4) A jury trial commenced on January 27, 2025. After the child testified

on the second day of trial, Clay pleaded guilty to two counts of first-degree rape and

sexual exploitation of a child in exchange for the State’s dismissal of the remaining

charges. The State also agreed not to seek sentencing enhancement under 11 Del. C.

§ 4205A. The court ordered a presentence investigation.

(5) On April 29, 2025, Clay’s counsel (not trial counsel but another

attorney in the Public Defender’s office) filed a motion to withdraw the guilty plea.

The motion was based on Clay’s allegations that his trial counsel had provided

inadequate representation. Counsel also filed a motion to withdraw because the

allegations of inadequate representation by a public defender created a conflict of

interest for the Public Defender’s Office. The State opposed the motion to withdraw

2 the guilty plea. The court granted counsel’s motion to withdraw and ordered the

appointment of new counsel for Clay.

(6) At the September 10, 2025 hearing on the motion to withdraw the guilty

plea, Clay’s new counsel described the events leading to the motion to withdraw,

summarized the contents of the motion, and stated that Clay would answer any

questions that the court had regarding the motion. The court then heard arguments

from the State and Clay. At the conclusion of the hearing, the Superior Court denied

Clay’s motion to withdraw his guilty plea. On October 31, 2025, the court sentenced

Clay to seventy-five years of Level V incarceration, suspended after forty years for

decreasing levels of supervision. This appeal followed.

(7) Clay’s counsel (“Counsel”) filed a brief and a motion to withdraw under

Supreme Court Rule 26(c) (“Rule 26(c)”). Counsel asserts that, based upon a

complete and careful examination of the record, there are no arguably appealable

issues. Counsel informed Clay of the provisions of Rule 26(c) and provided Clay

with a copy of the motion to withdraw and the accompanying brief. Counsel also

informed Clay of his right to identify any points he wished this Court to consider on

appeal. Clay has submitted points for the Court’s consideration. The State has

responded to the Rule 26(c) brief and argues that the Superior Court’s judgment

should be affirmed.

3 (8) When reviewing a motion to withdraw and an accompanying brief, this

Court must: (i) be satisfied that defense counsel has made a conscientious

examination of the record and the law for arguable claims; and (ii) conduct its own

review of the record and determine whether the appeal is so totally devoid of at least

arguably appealable issues that it can be decided without an adversary presentation.1

In his points submitted to this Court, Clay argues that the Superior Court erred in

denying his plea-withdrawal motion.

(9) We review the Superior Court’s denial of a motion to withdraw a guilty

plea for abuse of discretion. 2 Superior Court Criminal Rule 32(d) permits withdrawal

of a plea before sentencing for “any fair and just reason.” 3 The defendant bears the

burden of establishing a fair and just reason. 4 In deciding whether to grant a motion

to withdraw a plea, the Superior Court considers whether: (i) there was a procedural

defect in taking the plea; (ii) the defendant voluntarily entered the plea; (iii) the

defendant had a basis to assert legal innocence; (iv) the defendant had adequate legal

1 Penson v. Ohio, 488 U.S. 75, 83 (1988); Leacock v. State, 690 A.2d 926, 927-28 (Del. 1996). 2 Scarborough v. State, 938 A.2d 644, 649 (Del. 2007). 3 Super. Ct. Crim. R. 32(d). 4 Scarborough, 938 A.2d at 649.

4 counsel; and (v) granting the motion would prejudice the State or unduly

inconvenience the court.5

(10) Clay does not identify any procedural defect in the taking of his plea.

He suggested below that his anxiety issues constituted a procedural defect, but he

did not mention any such issues during the plea colloquy. Clay indicated in the

Truth-in-Sentencing Guilty Plea Form that he had never been a patient in a mental

hospital and that he was not under the influence of any drugs. As required by

Superior Court Criminal Rule 11(c), the Superior Court discussed the plea and its

ramifications with Clay during the plea colloquy. The Superior Court did not err in

finding that no there was procedural defect in Clay’s guilty plea.

(11) Clay claims that his plea was coerced and involuntary. As the Superior

Court recognized, the record contradicts this claim. In the Truth-in-Sentencing

Guilty Plea Form, Clay indicated that he voluntarily decided to plead guilty and that

all his answers to the questions in the form were truthful.

(12) During the plea colloquy, Clay affirmed that no one forced him to plead

guilty and that he understood that he was waiving his trial and appeal rights,

including appellate review of the denial of the motions he had filed. He further

indicated that he had enough time to confer with his trial counsel about the terms of

5 Id.

5 the plea agreement. “A defendant’s statements to the Superior Court during the

guilty plea colloquy are presumed to be truthful.” 6 In the absence of clear and

convincing evidence to the contrary, Clay is bound by his representations during the

guilty plea colloquy and in the Truth-in-Sentencing Guilty Plea Form.7

(13) Clay asserts that there is “a lot of evidence that directly refutes the

allegations” against him but fails to identify any of this evidence or explain how it

establishes a basis to assert legal innocence. 8 In denying the motion to withdraw the

plea, the Superior Court discussed how there was “strong testimony and

documentary and pictorial evidence” of Clay’s guilt. 9 The court emphasized the

“compelling” and “significant” nature of the complaining witness’s testimony

regarding Clay’s conduct.10 Clay admitted that he committed the crimes of first-

degree rape and sexual exploitation of a child during the plea colloquy. We do not

discern any error the Superior Court’s finding that Clay failed to establish a basis to

assert legal innocence.

6 Somerville v. State, 703 A.2d 629, 632 (Del. 1997). 7 Id. 8 Opening Br. Ex. A at 4. 9 Opening Br. App. at A1113. 10 Id. at A1111-13.

6 (14) As he did below, Clay argues that he lacked adequate legal counsel

during the plea process because his trial counsel was ineffective. He also argues that

the attorney appointed to handle the motion to withdraw his plea was ineffective, but

this claim was not raised or addressed below so we will not consider it for the first

time on appeal.11 To establish that his trial counsel was ineffective, Clay must show:

(i) his trial counsel’s representation fell below an objective standard of

reasonableness and that (ii) there is a reasonable probability that but for his trial

counsel’s errors, Clay would have insisted on proceeding with trial. 12 There is a

strong presumption that counsel’s representation was professionally reasonable. 13

(15) The Superior Court found that trial counsel’s representation did not fall

below an objective standard of reasonableness, highlighting trial counsel’s zealous

pretrial motion practice and best efforts in cross-examining the complaining witness.

Clay contends that his trial counsel was ineffective for failing to collect and review

evidence Clay identified, but he does not describe any of this evidence or explain

how it would be helpful to his case. During the plea withdrawal hearing, Clay

suggested that there were pictures, videos, cell phone data, and bank statements his

11 Desmond v. State, 654 A.2d 821, 829 (Del. 1994) (declining to consider ineffective assistance of counsel claim that was not decided in the Superior Court). 12 Hill v. Lockhart, 474 U.S. 52, 60 (1985); Strickland v. Washington, 466 U.S. 668, 690-96 (1984). 13 Strickland, 466 U.S. at 689.

7 trial counsel should have collected and reviewed. He did not, and does not, explain

how those materials would refute the numerous incidents that the child described as

occurring over the course of a decade. Nor does he address how the allegedly

exculpatory evidence relates to the child pornography charges. A few of the

photographs were admitted during the child’s testimony, but Clay pleaded guilty

before photographs of other children would have been introduced at trial. The

Superior Court did not err in finding that trial counsel’s representation of Clay was

adequate.

(16) Finally, the Superior Court found that withdrawal of the plea would

significantly prejudice the State because it might not be possible to schedule a new

trial until 2027 and witness memories would continue to fade in the meantime. The

court noted that the victim might not be willing to undergo the ordeal of testifying

again, leaving the State without a key witness. A new trial would also require the

court to expend scarce resources and convene another jury. Based on its findings

that none of the relevant factors weigh in favor of plea withdrawal, the Superior

Court denied Clay’s motion to withdraw his plea. We agree with the Superior

Court’s conclusion that the relevant factors did not weigh in favor of granting Clay’s

motion to withdraw his guilty plea.

(17) The Court has reviewed the record carefully and concluded that Clay’s

appeal is wholly without merit and devoid of any arguably appealable issue. We also

8 are satisfied that Counsel made a conscientious effort to examine the record and the

law and properly determined that Clay could not raise a meritorious claim on appeal.

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

Court be AFFIRMED and the motion to withdraw is moot.

BY THE COURT:

/s/ Gary F. Traynor Justice