IN THE SUPERIOR COURT OF THE STATE OF DELAWARE
STATE OF DELAWARE, ) ) v. ) ID No. 1602012206 ) ROBERT L. SMITH, ) ) Defendant. )
MEMORANDUM OPINION
Submitted: March 18, 2024 Decided: April 11, 2024
Upon Consideration of the Commissioner’s Report and Recommendation on Defendant’s Motion for Postconviction Relief, ADOPTED
Upon Consideration of Defendant’s Motion for Postconviction Relief, DENIED
Andrew J. Vella, Esquire, Chief of Appeals, Delaware Department of Justice, Wilmington, Delaware, Attorney for the State.
Edward C. Gill, Esquire, Law Offices of Edward C. Gill, P.A., Wilmington, Delaware, Rule 61 Counsel for Defendant Robert Smith.
JURDEN, P.J. I. INTRODUCTION
On August 30, 2017, Defendant Robert Smith (“Smith”) pled Guilty But
Mentally Ill (“GBMI”) to Murder First Degree and Possession of a Deadly Weapon
During the Commission of a Felony (“PDWDCF”) for the fatal stabbing of his
girlfriend, Igna Coffee Young (“Young”).1 He now moves for Postconviction Relief
under Superior Court Criminal Rule 61 (“Rule 61 Motion”).2 For the reasons set
forth below, the Commissioner’s Report and Recommendation (“Commissioner’s
Report”) is ADOPTED, and Smith’s Motion for Postconviction Relief is DENIED.
1 D.I. 24. 2 D.I. 28. Smith’s Rule 61 Motion was amended on April 30, 2019 with the help of Rule 61 Counsel. D.I. 47. II. BACKGROUND AND PROCEDURAL HISTORY
A. Factual Background
On February 18, 2016, Young’s daughter arrived at her leased apartment
located at 2305 Tatnall Street in the City of Wilmington to find her father, Smith,
sitting on the steps to her apartment holding Young’s cell phone.3 Smith told
Young’s daughter that he was locked outside and Young was dead inside.4 Young’s
daughter entered the residence and found her mother’s body lying in a pool of blood
on the floor.5 Young had been repeatedly stabbed with a screwdriver lying beside
her body.6 As Young’s daughter attempted to help her mother, Smith grabbed his
daughter’s car keys and fled the residence in the daughter’s 2003 Dodge Stratus.7
Shortly after leaving the scene, Smith admitted to a witness, “I killed that bitch . . .
just playing.”8 At the time of Young’s death, Smith was Young’s boyfriend.9 The
Delaware State Police located Smith driving the Dodge Stratus northbound on I-95
in the area of Route 273, southwest of the city of Wilmington. 10 A chase ensued,
resulting in Smith crashing the car on Linden Street.11 Upon being removed from
3 D.I. 61. 4 Id. 5 Id. 6 Id. 7 Id. 8 D.I. 61. 9 Id. 10 Id. 11 Id. the vehicle, officers noticed Smith’s sweatshirt, black boots, and khaki pants
appeared stained in blood.12 He was arrested later that night for Young’s murder.13
B. Procedural History
On May 23, 2016, a grand jury indicted Smith for Murder First Degree,
PDWDCF, Disregarding a Police Officer’s Signal, and Resisting Arrest.14 On
August 30, 2017, Smith pled GBMI to Murder First Degree and PDWDCF.15
On October 9, 2017, Smith submitted a letter requesting to withdraw his plea
on the basis that there was a defect in his indictment.16 Trial Counsel met with Smith
on October 19, 2017 to discuss his request to withdraw.17 Smith’s basis to withdraw
was the fact the victim’s name was spelled incorrectly.18 Trial Counsel advised
Smith that, based on his research, it appeared that a typographical error was not a
valid basis to withdraw a guilty plea.19
On November 2, 2017, the case proceeded to sentencing where Smith was
sentenced as follows: for Murder First Degree (IN-16-03-0040), the balance of his
12 Id. 13 Id. 14 D.I. 2. 15 D.I. 24. Following Smith’s plea colloquy, Trial Counsel received a letter from Smith dated August 30, 2017, in which Smith expressed concern about his mistaken belief that he had pled guilty to two counts of PDWDCF instead of one. D.I. 59. Trial Counsel met with Smith on September 15, 2017 and clarified that Smith had pled to one count of PDWDCF instead of one. D.I. 59. 16 D.I. 59. 17 Id. 18 Id. 19 Id. natural life at Level V; for PDWDCF (IN16-03-0041), 25 years at Level V followed
by 6 months at Level III.20
On November 16, 2017, Smith appealed his conviction to the Delaware
Supreme Court.21 Shortly thereafter, on November 27, 2017, Smith filed a pro se
Rule 61 Motion seeking to withdraw his guilty plea and raising claims of ineffective
assistance of counsel (“IAC”).22 On December 6, 2017, the Court sent a letter to
Smith informing him that his Rule 61 Motion would be deferred until the Supreme
Court issued a decision on appeal.23 On May 17, 2018, the Delaware Supreme Court
affirmed Smith’s conviction.24
On August 29, 2018, the Court requested supplemental information for
Smith’s Rule 61 Motion and ordered such information be provided by November
20 D.I. 26. At the time of his sentencing, Smith was on probation for Assault First Degree, Assault Second Degree, and Possession of a Deadly Weapon by a Person Prohibited (“PDWBPP”). D.I. 89 in Case No. K0304017352A. During his sentencing, he was found in violation of his probation (“VOP”) and was sentenced as follows: for Assault First Degree VOP, seven years at Level V, suspended for 6 years at Level V, followed by 1 year at Level III; for Assault Second Degree VOP, conditional release is revoked, defendant shall lose previously earned good time and meritorious good time, and will serve the balance of the sentence from which he was released; for PDWBPP VOP, conditional release is revoked, defendant shall lose previously earned good time including meritorious good time, and he will serve the balance of the sentence from which he was released. Id. 21 D.I. 27. 22 D.I. 28. 23 D.I. 32. 24 D.I. 40. Smith’s appellate counsel filed a motion to withdraw after finding no appealable issues. Smith v. State, 187 A.3d 550 (TABLE) (Del. May 17, 2018). Appellate counsel advised Smith of his right to appeal. Id. Smith did not raise any issues before the Supreme Court. Id. 26, 2018.25 On November 16, 2018, Smith requested an extension of time to respond
until he procured postconviction counsel to assist him in his Rule 61 Motion.26 On
January 7, 2019, the Court granted Smith an extension of time to respond until May
6, 2019.27
On April 30, 2019, with assistance from Rule 61 Counsel, Smith filed an
Amended Rule 61 Motion.28 Smith’s Amended Rule 61 Motion was referred to a
Commissioner for a Report and Recommendation on May 15, 2019.29
On August 29, 2019, the Court issued a briefing schedule, which was
subsequently amended on September 20, 2019.30 On November 15, 2019, Trial
Counsel filed a joint affidavit responding to Smith’s allegations of IAC raised in the
Amended Motion, denying all three grounds.31 The State submitted a response to
the Amended Motion on December 16, 2019.32 On January 14, 2020, Smith filed a
reply to the State’s response and requested an evidentiary hearing.33
On September 24, 2020, the Court granted Smith’s request for an evidentiary
hearing and directed Trial Counsel to provide the Court with copies of (i) any
25 D.I. 41. The Court in a letter asked Smith to submit supplemental information for his postconviction relief motion to explain why Smith believes he is entitled to postconviction relief. 26 D.I. 42. 27 D.I. 43. 28 D.I. 47. 29 D.I. 48. 30 D.I. 54, 58. 31 D.I. 59. Andrew Meyers, Esq. and Dean DelCollo, Esq., jointly served as Smith’s Trial Counsel. 32 D.I. 61. 33 D.I. 62. communications in which Smith specifically requested to proceed to trial or
withdraw his plea and (ii) any correspondence or memoranda in which Trial Counsel
analyzed the evidence and assessed the risks associated with trial and/or explained
the benefits of the plea agreement to Smith.34 On September 16, 2021, an evidentiary
hearing was held at which Smith testified.35
A second evidentiary hearing was held on October 25, 2021, at which time
the State called Trial Counsel, Dean DelCollo, Esq., to testify regarding his
communications with Smith prior to Smith accepting the plea.36 Following the
hearing, the Court directed the State to address the language set forth in 11 Del. C.
§ 408(a) in its supplemental briefing in light of the Taylor v. State decision.37 The
State submitted its supplemental briefing on November 18, 2021, and Smith filed a
reply on December 8, 2021.38
34 D.I. 67. For clarity on the timeline, on March 12, 2020, the Governor declared a State of Emergency for Delaware due to the threat of COVID-19, which was extended numerous times through July 13, 2021. A judicial emergency went into effect on March 16, 2020, which was extended multiple times until it was lifted on July 13, 2021. No in-person hearings of this nature were permitted during the judicial emergency. 35 D.I. 70. 36 D.I. 74. 37 213 A.3d 560 (Del. 2019); D.I. 74. Because Smith did not file an objection to the Commissioner’s decision on the argument pertaining to 11 Del. C. § 408(a), the Court will not address it here. 38 D.I. 77-81. The Court held a third evidentiary hearing to obtain the testimony of Andrew
Meyers, Esq., on June 29, 2023.39 The State requested to supplement its previous
response on the issue of Section 408, which the Court granted.40 The State filed its
supplemental response on September 1, 2023, and Smith filed a final response on
September 25, 2023.41
On December 31, 2023, the Commissioner filed her Report, denying Smith’s
Rule 61 Motion.42 Smith submitted an appeal from the Commissioner’s Report on
January 9, 2024.43 The Court requested the State submit a response to Smith’s appeal
on January 18, 2024.44 On March 18, 2024, the State submitted a response.45
C. Smith’s Objections to the Commissioner’s Findings
• The Commissioner’s finding that the decision to take the GBMI plea to Murder First Degree was Smith’s as opposed to his Trial Counsels’ • The Commissioner’s finding that Smith did not suffer constitutionally IAC due to Trial Counsels’ handling of his request to withdraw his guilty plea • The Commissioner’s finding that Smith did not suffer constitutionally IAC when he did not obtain any benefit from his guilty plea
39 D.I. 82, 85. The delay for the evidentiary hearing was due to Trial Counsel’s work-related conflicts and Rule 61 Counsel’s health issues. Additionally, the case had to be reassigned to a new DAG. See D.I. 83-84. 40 D.I. 83-84. 41 D.I. 87, 88. 42 D.I. 89. 43 D.I. 90. 44 D.I. 91. 45 D.I. 92. III. STANDARDS OF REVIEW
Under 10 Del. C. § 512(b)(1), the Court may designate a commissioner to
review a postconviction relief motion and provide a report and corresponding
recommendation to the Court.46 Following the issuance of a report and
recommendation, any party may file timely objections to the Commissioner’s
findings.47 In reviewing a party’s objections, the Court “shall make a de novo
determination of those portions of the report or specified findings of fact or
recommendations to which an objection is made.”48 The Court may then “accept,
reject, or modify, in whole or in part, the findings or recommendations made by the
Commissioner.”49
A. Rule 61: Procedural Bars to Relief
Superior Court Criminal Rule 61 governs postconviction relief motions.50
Under Rule 61, an incarcerated individual may seek abrogation of his conviction by
establishing a lack of jurisdiction or alternative ground that sufficiently establishes
a factual and legal basis for a collateral attack upon the conviction.51 While Rule 61
46 10 Del. C. § 512(b)(1)b. 47 10 Del. C. § 512(b)(1)d. 48 Id.; State v. Bartell, 2020 WL 6480845, at *1 (Del. Super. Nov. 4, 2020). 49 Id. 50 Super. Ct. Crim. R. 61(a)(1). 51 Id. is designed to cure constitutional infirmaries, it does not provide defendants
unlimited opportunity to relitigate their convictions.52
Before considering the merits of any postconviction relief motion, the Court
to first evaluate whether any procedural bars exist.53 Rule 61(i) establishes four
procedural bars to postconviction relief.54 Rule 61(i)(1) requires a motion for
postconviction relief must be filed within one year of a final judgment or
conviction.55 Rule 61(i)(2) bars successive motions for postconviction relief unless
certain conditions are met.56 Pursuant to Rule 61(i)(3) and (4), any ground for relief
not previously raised is deemed waived and any claims formerly adjudicated are
thereafter barred.57
There is an exception to the Rule 61(i)(3) procedural bar to relief. Procedural
default may be overcome if the movant shows “(A) cause for relief from the
procedural default and (B) prejudice from violation of the movant’s rights.”58 A
52 Ploof v. State, 75 A.3d 811, 820 (Del. 2013). 53 Younger v. State, 580 A.2d 552, 554 (Del. 1990). 54 Super. Ct. Crim. R. 61(i)(1)-(4). 55 Super. Ct. Crim. R. 61(i)(1). 56 Rule 61(i)(2) bars successive or subsequent motions for postconviction relief unless the movant is able to “pled with particularity” that (i) “new evidence exists that creates a strong inference that the movant is actually innocent in fact of the acts underlying the charges of which he was convicted” or (ii) “a new rule of constitutional law, made retroactive to cases on collateral review by the United States Supreme Court or the Delaware Supreme Court, applies to the movant’s case and renders the conviction or death sentence invalid.” Super. Ct. Crim. R. 61(d)(2). 57 This includes proceedings leading to the judgment of conviction, in an appeal, in a postconviction proceeding, or in a federal habeas corpus proceeding. See Super. Ct. Crim. R. 61(i)(5), (d)(2)(i), (ii). 58 Super. Ct. Crim. R. 61(i)(3)A, B. “cause” for procedural default can be shown through IAC.59 Because IAC claims
cannot be raised at any earlier stage in the proceedings, they are properly presented
through a postconviction relief motion.60
B. Rule 61: Ineffective Assistance of Counsel
To succeed under an IAC claim, a defendant must meet the two-part test laid
out in Strickland v. Washington.61 That is, the defendant must demonstrate that: (1)
trial counsel’s performance was objectively unreasonable,62 and (2) if counsel was
deficient, there was a “reasonable probability that, but for counsel’s unprofessional
errors, the result of the proceeding would have been different.”63
The Strickland standard is highly demanding and leads to a strong
presumption that counsel’s conduct fell within a wide range of reasonably
professional assistance.64 Mere allegations of ineffectiveness are not enough.65
Counsel “may not be faulted for reasonable miscalculation or lack of foresight or for
failing to prepare for what appear to be remote possibilities.”66 There is a strong
59 Younger, 580 A.2d at 556. 60 Sabb v. State, 2021 WL 2229631, at *1 (Del. May 28, 2021); Green v. State, 238 A.3d 160, 187- 188 (Del. 2020); Whittle v. State, 2016 WL 2585904, at *3 (Del. Apr. 28, 2016); State v. Evan- Mayes, 2016 WL 4502303, at *2 (Del. Super. Aug. 25, 2016). 61 466 U.S. 668, 694 (1984). 62 Sykes v. State, 147 A.3d 201, 211 (Del. 2015) (citing Strickland, 466 U.S. at 694). 63 Strickland, 466 U.S. at 694. 64 Albury v. State, 551 A.2d 53, 59 (Del. 1988); Salih v. State, 2008 WL 4762323, at *1 (Del. 2008). 65 Younger, 580 A.2d at 556. 66 State v. Finn, 2012 WL 1980566, at *4 (Del. Super. May 23, 2012) (citing Harrington v. Richter, 562 U.S. 86, 102-110 (2011)). presumption that a defense counsel’s conduct constituted sound trial strategy,67 and
a defendant must make and substantiate concrete allegations that overcome this
presumption.68 When reviewing a defendant’s allegations of deficient counsel, the
reviewing court must “avoid peering through the lens of hindsight.”69 The
“[b]enchmark for judging any claim of ineffectiveness must be whether counsel’s
conduct so undermined the proper functioning of the adversarial process that the trial
cannot be relied on as having produced a just result.”70
IV. DISCUSSION
In her forty-two-page Commissioner’s Report, after detailing why Smith fails
to establish he is entitled to postconviction relief, the Commissioner concludes:
Smith’s plea represented a rational choice given the pending charges, the evidence against him, and the possible sentences he was facing. Smith entered into his plea knowingly, intelligently, and voluntarily. The Court finds that defense counsel was not deficient in failing to bring forth Smith’s request for a motion to withdraw guilty plea because the facts suggest he had abandoned that desire. Moreover, given that the basis of Smith’s request would not have qualified as a fair and just reason for withdrawal under Superior Court Criminal Rule 32(d), the Court finds that Smith did not suffer any prejudice for the failure to bring such a motion would satisfy Strickland. And finally, the Court finds that Smith’s plea inured to his benefit. Accordingly, Smith’s ineffective assistance of counsel claims are without merit.71
67 Strickland, 466 U.S. at 694. 68 See Salih, 962 A.2d at 257; see also Albury, 551 A.2d at 59. 69 State v. Wright, 653 A.2d 288, 295 (Del. Super. 1994). 70 Cooke v. State, 977 A.2d 803, 840 (Del. 2009) (internal quotations omitted). 71 Comm. Rep. at 41. Because this is Smith’s first Rule 61 Motion and it is timely, the Court now
addresses each of Smith’s Objections to the Commissioner’s Report in turn.
A. Smith’s Objection that it was His Decision to Take the GBMI Plea is Without Merit
Smith claims that the evidentiary record supports his contention that he
expressed his desire not to accept the GBMI plea and instead wished to go to trial.72
He argues that he specifically requested to go to trial on July 25, 2017 and August
17, 2017, and that Trial Counsel violated his absolute right to decide whether to take
a plea.73 Additionally, he argues that had he gone to trial, he could have done so
under the Extreme Emotional Distress (“EED”) defense and could have potentially
been convicted of Manslaughter rather than Murder First Degree.74
In Defense Counsels’ Affidavit in Response to Smith’s Rule 61 Motion, Trial
Counsel state that they met with Smith at least twenty-six times—at the Howard R.
Young Correction Institute and during Smith’s scheduled court appearances.75 Trial
Counsel state that in their discussions with Smith, they detailed the benefits and
drawbacks of going to trial versus resolving the matter through a plea bargain, as
well as potentially viable defenses.76 Trial Counsel informed Smith that there was a
72 Appeal from the Commissioner’s Findings of Facts and Recommendation at 1. 73 Id. 74 Id. at 1-2. 75 D.I. 59. 76 Id. significant mandatory minimum if convicted of all counts in the indictment.77 While
Trial Counsel admit that Smith had reservations about entering into the plea, Trial
Counsel averred in their sworn affidavit that it was ultimately Smith’s decision to
enter the plea at the August 30, 2017, plea colloquy.78
Trial Counsel averred in their affidavit that they discussed the possibility of
raising an EED defense at Smith’s trial and how it could potentially result in a
conviction of Manslaughter rather than Murder First Degree which could lead to a
sentence of anywhere from 50 years minimum up to life imprisonment.79 However,
Trial Counsel also informed Smith, that based on his prior record, he was eligible to
be a habitual offender which would lengthen his conviction exponentially.80
Trial Counsel attest that when Smith decided to take the plea, he understood
that by pleading GBMI he was likely to receive better access to quality psychiatric
treatment, he wished to accept responsibility for his actions, and he did not want to
put his family through a trial.81
In Somerville v. State, the Supreme Court laid out the numerous protections
defendants have throughout the guilty plea process:
77 Id. 78 Id. 79 Id. 80 Id. 81 Id. [p]rior to accepting a guilty plea, the trial judge must address the defendant in open court. The judge must determine that the defendant understands the nature of the charges and the penalties provided for each of the offenses. The record must reflect that the defendant understands that the guilty plea constitutes a waiver of a trial on the charges and a waiver of the constitutional rights to which he or she would have been entitled to exercise at a trial. The trial judge must also determine that a guilty plea is not the result of force, threats, or promises apart from the plea agreement, i.e., is voluntary.82
“[A] defendant’s statements to the Superior Court during the guilty plea
colloquy are presumed to be truthful.”83 These representations made during the plea
colloquy create a “formidable barrier in any subsequent collateral proceedings.”84
In the plea hearing on August 30, 2017, Smith and the prosecution
acknowledged that they had reached an agreement with the Court.85 The Plea
Agreement was signed by both parties and submitted to the Court.86 At sentencing,
Trial Counsel addressed the Court and affirmed that they went over the Truth-In-
Sentencing Guilty Plea form with Smith and they explained all the rights that he was
giving up.87 Trial Counsel stated that Smith was informed that by pleading to
Murder First Degree the sentence was a mandatory minimum sentence of life
82 703 A.2d 629, 631 (Del. 1997). 83 Id. at 632. 84 Blackledge v. Allison, 431 U.S. 63, 73-74 (1977). 85 D.I. 24. 86 Id. 87 Id. at 5. imprisonment without the possibility of parole and that he could face anywhere
between 2 to 25 years for the PDWDCF charge.88
The Court then addressed Smith in open court and after a thorough colloquy
determined that Smith was entering the plea, knowingly, intelligently, and
voluntarily.89 The exchange between the Court and Smith was as follows:
THE COURT: You reviewed [] [the Truth-in-Sentencing Guilty Plea Form and copy of the Plea Agreement] carefully with your attorneys; correct? THE DEFENDANT: Yes. THE COURT: And you understood all the questions on those forms? THE DEFENDANT: Yes. THE COURT: And did you sign the forms at the bottom? THE DEFENDANT: Yes. THE COURT: All right. I’m going to walk through the plea with you. You wish to plead Guilty But Mentally Ill to the charge in Count 1 of Murder in the First Degree; is this correct? THE DEFENDANT: Yes. ... THE COURT: So it’s charged—the indictment, which is the charging document, charges you as follows: Robert Smith, on or about the 18th day of February 2016, in the County of New Castle, State of Delaware, did intentionally cause the death of Igna Coffey . . . by stabbing her multiple times. How do you wish to plead to this charge? THE DEFENDANT: Guilty. THE COURT: But mentally ill. THE DEFENDANT: But mentally ill.
88 Id. at 6. 89 Id. THE COURT: Count 2 charges you with Possession of a Deadly Weapon During the Commission of a Felony. It’s alleged that you on or about the 18th day of February, 2016 in New Castle County, Delaware knowingly and unlawfully possessed a screwdriver, a dangerous instrument used to cause death, a deadly weapon, as defined under Delaware law. How do you wish to plead to this crime? THE DEFENDANT: Guilty But Mentally Ill. ... THE COURT: Have I now just reviewed with you the entire written plea agreement? THE DEFENDANT: Yes. THE COURT: Has anybody promised you what your sentence will be? THE DEFENDANT: No. ... THE COURT: Are you freely and voluntarily deciding to plead Guilty But Mentally Ill to the charge of Murder in the First Degree and Possession of a Deadly Weapon During the Commission of a Felony? THE DEFENDANT: Yes. THE COURT: Have you been promised anything not stated in the written plea agreement? THE DEFENDANT: No. THE COURT: Has anybody threatened or forced you to enter into this plea? THE DEFENDANT: No. ... THE COURT: And you understand that by pleading Guilty But Mentally Ill you’re not going to have a trial on the charges in the indictment? THE DEFENDANT: Yes. THE COURT: And you understand that because you’re not going to have a trial and you’re entering a plea, if your plea is accepted you’re giving up all of those constitutional rights? THE DEFENDANT: Yes. THE COURT: And you wish to do that because you believe after thought and reflection and consultation with your attorneys that it’s in your best interest to accept this plea and enter a plea of Guilty But Mentally Ill rather than go to trial; is that correct? THE DEFENDANT: Yes. THE COURT: Do you feel you need any more time to make that decision? THE DEFENDANT: No. ... THE COURT: Has anyone promised you what your sentence will be? THE DEFENDANT: No. THE COURT: Okay. And you understand that the minimum mandatory penalty here is life in prison? THE DEFENDANT: Yes. ... THE COURT: Are you satisfied with your lawyers’ representation of you and that they fully advised you of your rights? THE DEFENDANT: Yes. THE COURT: And just to reiterate, you carefully read the Truth-In-Sentencing Guilty Plea Form and the plea agreement; correct? THE DEFENDANT: Yes. THE COURT: And you understood them? THE DEFENDANT: Yes. THE COURT: And you answered all the questions put to you by these forms truthfully after you read them and understood them? THE DEFENDANT: Yes. THE COURT: And all your answers here today to me have been truthful; correct? THE DEFENDANT: Yes.90
90 Id. at 10-20. Smith stated that he was entering his guilty plea freely and voluntarily, no one
threatened or coerced him to accept the plea, and he believed after thought, reflection
and consultation with his Trial Counsel, it was in his best interest to accept the plea.91
“In absence of clear and convincing evidence to the contrary,” Smith is bound
by his answers on the Truth-in-Sentencing Guilty Plea Form and by his answers
during the plea colloquy.92 Smith’s statements that he did not wish to enter into the
plea and felt coerced to do so are insufficient grounds to withdraw the plea. 93 The
Court had a thorough colloquy with Smith about his GBMI plea, during which Smith
expressed a clear desire to enter into the plea.94 The decision to accept a plea rests
solely with the defendant, and based on the colloquy, the Court was—and remains—
satisfied that Smith knowingly, intelligently, and voluntarily made the decision to
accept the plea.95
Smith’s assertion that he did not want to take the plea directly conflicts with
the statements he made at sentencing. While Smith produces his notebook as
evidence that he showed uncertainty in two instances about taking the plea, this does
91 Id. 92 State v. Melendez, 2003 WL 23095688, at *4 (Del. Super. Dec. 19, 2003). 93 Id. (“[A] defendant's bald statements that simply contradict what he said at his plea allocution are not sufficient grounds to withdraw the guilty plea. Nor should they be permitted to vacate a guilty plea after sentence has been imposed.”) (internal quotations and citations omitted). 94 See D.I. 24. 95 Cooke, 977 A.2d 803, 843 (holding that a defendant has a fundamental right to decide to enter into a plea). not demonstrate that it was Trial Counsels’ decision to take the plea, not Smith’s. To
the contrary, Smith’s statements during his plea colloquy demonstrate that he entered
into the plea willingly and on his own volition.96 Additionally, during the plea
colloquy, Smith stated that he was satisfied with his Trial Counsels’ representation
of him.97
When the Court finds that a defendant’s contentions are adequately and
appropriately addressed at a plea colloquy, the defendant is bound by his in-court
representations.98 Smith affirmatively answered through extensive questioning that
he wanted to enter into the GBMI plea and did so. Therefore, the Court affirms the
Commissioner’s finding that it was Smith’s decision to enter into his plea and not
his attorneys’.
B. Ineffective Assistance of Counsel Claims
i. Trial Counsels’ decision not to withdraw Smith’s guilty plea
Smith argues that he suffered constitutionally ineffective assistance of counsel
due to Trial Counsels’ decision not to submit a motion to withdraw his guilty plea.
To prevail under Rule 61, Smith must show there was cause for relief and prejudice
from the violation of his rights.99
96 D.I. 24. 97 Id. 98 State v. Harman, 2020 WL 17829962, at *1 (Del. Super. Dec. 20. 2022). 99 Super. Ct. Crim. R. 61(i)(3). After entering his plea on August 30, 2017, Smith wrote a letter to Trial
Counsel, dated October 9, 2017, requesting to withdraw his plea and relayed that
same request in person to Trial Counsel on October 19, 2017.100 On October 19,
2017, Trial Counsel informed Smith that he had no legal basis to withdraw his guilty
plea.101
“When the defendant is represented by counsel, the authority to manage the
day-to-day conduct of the defense rests with the attorney.”102 However, “certain
decisions regarding the exercise or waiver of basic trial and appellate rights are so
personal to the defendant that they cannot be made for the defendant by a
surrogate.”103
The Delaware Supreme Court held in Reed that “a criminal defendant’s
control of the objective of the representation prior to sentencing requires that counsel
either obey an instruction to file a motion to withdraw a guilty plea, or seek leave to
withdraw so that the defendant can file a motion with other counsel or pro se . . . .
Even if counsel believes the defendant’s motion is contrary to his interest or is
without merit, a defendant’s decision to attempt to withdraw a plea prior to
sentencing cannot be overruled by counsel.”104 Because Reed’s counsel did not file
100 D.I. 47 at 3. 101 D.I. 37 at 3. 102 Cooke, 977 A.2d at 840. 103 Id. 104 Reed v. State, 258 A.3d 807, 829 (Del. 2021). a pre-sentence motion to withdraw his guilty plea and he did not rescind his request,
his trial counsel’s refusal constituted deficient performance under Strickland.105
In this case, Smith clearly indicated that he wished to file a motion to
withdraw his guilty plea, did not rescind his request, and Trial Counsel did not file
a motion to withdraw as counsel or withdraw the guilty plea.106 Thus, pursuant to
Reed, Trial Counsel were deficient under Strickland. However, the analysis does
not stop there, because as outlined in Reed, Smith must still satisfy the second
Strickland inquiry and show that Trial Counsels’ failure to file the motion caused
him prejudice.107
To satisfy the second prong in Strickland, Smith “must show there is a
reasonable probability that, but for counsel’s unprofessional errors, the result of the
proceeding would have been different.”108 A reasonable probability as defined here
means that the “probability is sufficient to undermine the confidence in the
outcome,” which is a lower standard than the “more likely than not” standard.109
105 Id. at 828. 106 While the Commissioner in her Report finds it convincing that the fact that Smith did not continue to request a motion to withdraw the plea is an indication that Smith abandoned his desire to withdraw, the Court is unconvinced. There is no clear indication that Smith decided to withdraw, and the fact that Smith did not file a pro se motion with the Court to withdraw while still represented by counsel is not a defining factor of whether he abandoned his desire. The Court here gives the benefit of the doubt to Smith based on the factors in this case. 107 Id. at 829. 108 Starling v. State, 130 A.3d 316, 325 (Del. 2015) (quoting Strickland, 466 U.S. at 694). 109 Id. This likelihood of a different result “must be substantial, not just conceivable.”110
Thus, Smith must show that there is some reasonable probability that he would have
continued to trial and that the Court would have granted his motion to withdraw his
plea.111
Under Rule 32(d), the Court may allow the withdrawal of a guilty plea so long
as the defendant makes a showing that there is a “fair and just reason.”112 The
decision to grant a motion to withdraw a guilty plea rests at the discretion of the
Court.113 The Court “must give due weight to the proceedings by which the plea
was taken and the presumptively truthful statements the defendant made in the
colloquy.”114 There are five questions the Court must examine in reaching its
decision:
(1) Was there a procedural defect in taking the plea; (2) Did [defendant] knowingly and voluntarily consent to the plea agreement; (3) Does [defendant] presently have a basis to assert legal innocence; (4) Did [defendant] have adequate legal counsel throughout the proceedings; and (5) Does granting the motion prejudice the State or unduly inconvenience the Court.115
110 Id. 111 Reed, 258 A.3d at 829-30. 112 Super. Ct. Crim. R. 32(d). 113 State v. Insley, 141 A.2d 619, 622 (Del. 1958). 114 Reed, 258 A.3d 830. 115 Scarborough v. State, 938 A.2d 644, 649 (Del. 2007) (“These factors are not factors to be balanced; indeed, some of the factors of themselves may justify relief.”). Smith does not set forth any basis on which a motion to withdraw his guilty
plea would have been accepted by the Court in evaluating these questions. Rather,
he argues he was prejudiced because “he was not permitted the opportunity to litigate
his Motion to Withdraw his Guilty Plea and move forward to Trial to assert his
defenses and hold the State to its burden of proof.”116 This does not provide a basis
for the Court to grant a motion to withdraw his guilty plea in light of the plea
colloquy the Court held with Smith. Because Smith’s statements are presumed to
be true based on his representations at the plea colloquy, the Court does not find a
sufficient basis to grant a withdrawal of his guilty plea.
Further, to the extent Smith argues that there was a typographical error in his
indictment, the Court does not find this would be a sufficient basis to grant a motion
to withdraw a guilty plea. “The purpose of an indictment is to put the accused on
full notice on what he is called to defend, and to effectively preclude subsequent
prosecution for the same offense.”117 The Court is unconvinced that a typographical
error in the indictment would have provided a basis for Smith to withdraw his guilty
plea.118 Rather, Smith’s statements during the plea colloquy would have provided a
much stronger argument for keeping the plea in place.119 As correctly stated by the
116 Appeal to the Commissioner’s Findings of Facts and Recommendations at 2-3. 117 White v. State, 243 A.3d 381, 408 (Del. 2020) (citing Dahl v. State, 926 A.2d 1077, 1081 (Del. 2007)). 118 D.I. 24. 119 Id. State, the misspelling of the victim’s name in the indictment does not satisfy the
significant burden required to demonstrate a fair and just reason for withdrawing a
guilty plea.120
Smith fails to satisfy the prejudice prong of the Strickland analysis, and thus
this claim lacks merit.
ii. Smith’s benefit from the guilty plea
The second ground upon which Smith brings an IAC claim is that Trial
Counsel were ineffective for failing to provide Smith with any benefit from his plea.
In support of his argument, Smith states that had he gone to trial and been found
guilty of every offense, he would have received the exact same life imprisonment
without parole that he received through his guilty plea.121 He further points out that
he received more time on his sentence because the State violated him on the
probation he was serving, thus demonstrating that he received no benefit from the
plea.122
The test for determining the validity of a guilty plea is “whether the plea
represents a voluntary and intelligent choice among the alternative courses of action
120 See State’s Response to Defendant’s Appeal to the Commissioner’s Findings of Facts and Recommendations. 121 Appeal to the Commissioner’s Findings of Facts and Recommendations at 2-3. 122 Id. open to the defendant.”123 Smith is unable to demonstrate an IAC claim here because
Trial Counsels’ advice was not objectively unreasonable.
By signing the plea agreement, Smith gained the opportunity to receive the
intensive mental health treatment that he sought.124 Further because of the plea, the
State did not obtain expert testimony that contradicted Smith’s testimony that he was
suffering from mental illness at the time of the killing.125 Trial Counsel also advised
that by accepting responsibility Smith could possibly be benefited in future
proceedings.126 Smith expressed that he did not wish to put his family through trial
and, because of the plea, he did not have to.127 Smith admitted that he wanted to
take the plea because it was in his best interest.128 Additionally, the State did not
seek to have Smith declared as a habitual offender because of the plea, which is a
motion they could have (and likely would have) submitted had Smith gone to trial.
Smith benefitted from the plea agreement and Trial Counsel were not ineffective for
suggesting he accept it. Based on the record, the Court finds it was ultimately
Smith’s decision to take the plea, and he is bound by his decision.
123 Hill v. Lockheart, 474 U.S. 52, 56 (1985). 124 “By entering into the plea of guilty but mentally ill, Smith was transferred and held at the Delaware Psychiatric Center for over two years receiving mental health treatment.” Smith, 2023 WL 905909, at *15; D.I. 74 at 19-20. 125 D.I. 74 at 17-18. 126 June 29, 2023, Evidentiary Hearing Tr. at 45-46. 127 D.I. 74 at 20. 128 D.I. 24. Consequently, Smith’s IAC claim based on the fact he gained no benefit from
the plea lacks merit.
For the foregoing reasons, Smith has failed to establish a basis for
postconviction relief pursuant to Rule 61.
V. CONCLUSION
WHEREFORE, after careful and de novo review, the Court accepts and
ADOPTS the Commissioner’s Report,129 and Robert Smith’s Motion for
Postconviction Relief is DENIED.
IT IS SO ORDERED.
/s/ Jan R. Jurden Jan R. Jurden, President Judge
oc: Prothonotary cc: Andrew J. Vella, Esquire Edward C. Gill, Esquire Robert L. Smith, (SBI# 00186178)
129 See Super. Ct. Crim. R. 62(a)(5)(iv) (“A judge may accept, reject, or modify, in whole or in part, the findings of fact or recommendations made by the Commissioner.”).