IN THE SUPERIOR COURT OF THE STATE OF DELAWARE 

STATE OF DELAWARE, )

) 

v. ) I.D. No. 2105008322

)

MAURICIO HERNANDEZMARTINEZ,)

)

) 

 Defendant. )

MEMORANDUM OPINION

Submitted: April 25, 2023

Decided: May 3, 2023

Upon Consideration of Defendant’s Motion to Withdraw Guilty Pleas-After 

Remand,

DENIED.

Kevin A. Gardner, Esq., Deputy Attorney General, Department of Justice, 

Georgetown, Delaware, Attorney for the State of Delaware.

Edward C. Gill, Esq., Law Office of Edward C. Gill, P.A., Georgetown, Delaware, 

Attorney for Defendant. 

CONNER, J.
1

INTRODUCTION 

Mauricio Hernandez-Martinez’s (“Defendant”) Motion to Withdraw Guilty 

Pleas (the “Motion”) arises from his October 4, 2021, guilty pleas to Operating a 

Motor Vehicle Causing Death and Leaving the Scene of a Collision Resulting in 

Death. Defendant filed the Motion on November 22, 2021. Upon hearing the 

testimony of Andrew Whitehead, Esq. on remand and reviewing the parties’

submissions, Defendant’s Motion to Withdraw Guilty Pleas is again DENIED.

FACTUAL AND PROCEDURAL HISTORY 

On November 7, 2020, police were dispatched to a hit and run collision. When 

police officers arrived on scene they found Robert Root (the “victim”). The victim 

had been struck by a car while walking along East Trap Pond Road in Georgetown, 

Delaware. The victim died as a result of his injuries. 

Police officers interviewed two eyewitnesses to the collision.1 The witnesses 

stated they observed a white sedan, what they thought to be a Nissan Altima, pass 

them at a high rate of speed. After passing them, the sedan struck the victim who 

was walking eastbound in the westbound lane. The operator of the white sedan did 

not stop after striking the victim.

1 The collision was also captured on the witness’ dash camera. 
2

Investigating police officers discovered numerous pieces of the white sedan 

left behind at the scene of the accident due to the collision. Among the pieces was 

part of the white sedan’s mirror, which enabled police to narrow their search to a 

2008 to 2013 white Nissan Altima. 

On November 9, 2020, Defendant went to see Andrew Whitehead, Esquire.2 

Mr. Whitehead provided a translator for the meeting. Mr. Whitehead testified that 

he advises clients of immigration ramifications as a matter of course during initial 

consultations.3 Further, Mr. Whitehead testified that it is his practice to advise 

clients with possible immigration issues to consult an immigration attorney.4 Mr. 

Whitehead also testified that before a police interview is conducted it is his practice 

to advise the client of their fifth amendment rights.5 Although he had no specific

recollection and his notes do not reflect he had these conversations with Defendant, 

Mr. Whitehead was clear that these things are routinely discussed with his clients.6 

Mr. Whitehead explained that Defendant was adamant about wanting to take 

responsibility for the collision at this first meeting.

7 Defendant’s desire did not 

waiver despite Mr. Whitehead advising Defendant he had no duty to talk with the 

2 Tr. of Evidentiary Hr’g at 8:3-9. 

3

Id. at 16:6-19, 17:4-16. 

4

Id. at 17:4-16, 18:10-17, 21:9-23, 43:16-21. 

5

Id. at 18:18-23, 19:1-15. 

6

Id. at 16:6-19, 17:4-16, 18:10-17, 19: 1-15, 21:9-23, 43:16-21. 

7

Id. at 20:1-14. 
3

police and could simply leave his office, potentially not incurring criminal charges.

8

 

Mr. Whitehead explained Defendant wanted to take responsibility for the incident in 

order to protect his family member who owned the car.9 When Defendant made it 

clear that he needed to take responsibility, Mr. Whitehead discussed the strategies 

and benefits to early acceptance of responsibility by meeting with the police.10 Mr. 

Whitehead further testified that he advised Defendant they could argue early 

acceptance of responsibility as a mitigating factor.11 

Mr. Whitehead then contacted Detective Argo on November 9, 2020, and 

indicated that Defendant, his client, wanted to turn himself in regarding a hit and 

run.12 Detective Argo interviewed Defendant on November 11, 2020.13 During the 

interview, Defendant admitted to driving the white Nissan Altima that was involved 

in the collision. Defendant also stated his cousin, Carlos Hernandez was in the car at 

the time of the collision. During this interview Defendant told Detective Argo that 

he returned to the scene of the collision that night but did not make contact with the 

police officers that were there. Defendant stated he saw a news story regarding the 

collision and wanted to contact the police to do the right thing. 

8

Id. at 20:22-23, 21:1-6, 22:15-23, 23:1-10. 

9

Id. at 21:1-6, 23:1-10, 41:6-16. 

10 Id. at 24:20-23, 25:1-4. 

11 Id. at 34:2-18, 45:4-23, 53:19-21.

12 Id. at 41:23, 42:1-23. 

13 Id. 
4

Detective Argo also interviewed Carlos Hernandez. Hernandez corroborated 

all of Defendant’s statements. Hernandez stated Defendant was driving the car, 

returned to the scene of the collision, and turned himself in after seeing the news 

story. 

Defendant was indicted by the Grand Jury on May 25, 2021. Prior to the entry 

of the plea, Mr. Whitehead testified he spoke with Defendant at least three times by 

phone and met with him once more in the office.14 Defendant entered guilty pleas 

to Operating a Motor Vehicle Causing Death and Leaving the Scene of a Collision 

Resulting in Death on October 4, 2021 and a pre-sentence report was ordered. A 

substitution of counsel occurred on November 18, 2021, where Edward Gill, Esq. 

entered his appearance on behalf of Defendant. Defendant filed the pending motion 

on November 22, 2021. The State filed a response to Defendant’s Motion on 

December 13, 2021. 

On February 11, 2022, this Court heard oral argument on Defendant’s motion. 

During argument Mr. Gill requested that Defendant and his brother testify. The 

State objected, arguing that testimony was not necessary, but if allowed, the 

testimony of Mr. Whitehead would also be needed. At the conclusion of the 

argument the Court orally ordered the parties to submit supplemental briefing 

14 Id. at 32:4-9. 
5

regarding the issue of whether an evidentiary hearing was necessary. Defendant 

submitted his supplemental brief on February 17, 2022, and the State responded on 

February 24, 2022. After reviewing the parties’ submissions this Court sent a letter 

to counsel on April 6, 2022, stating an evidentiary hearing was not required. 

On May 20, 2022, this Court denied Defendant’s Motion and proceeded to 

sentencing. Defendant directly appealed to the Delaware Supreme Court on May 26, 

2022, amending his appeal to add correct names and addresses on June 2, 2022. On 

September 1, 2022, the Supreme Court ordered this Court to conduct an evidentiary 

hearing staying Defendant’s appeal. The evidentiary hearing was held on March 27, 

2023.15 Curiously, Mr. Gill changed course and did not solicit testimony from his 

client or his brother who were available in the court room. Mr. Whitehead was the 

only witness who testified at the remand hearing. 

DEFENDANT’S CLAIMS 

Defendant makes several claims as to why he should be permitted to withdraw 

his guilty pleas. First, Defendant argues the Truth-In-Sentencing Guilty Plea Form 

(the “TIS Form”) contained two mistakes. Defendant’s second claim is that the 

indictment was defective. Third, Defendant claims his prior counsel, Mr. Whitehead,

was ineffective. Fourth, Defendant argues there is evidence that would prove his 

15 The evidentiary hearing was originally scheduled for October 28, 2022, but had to be 

postponed due to defense counsel’s health issues. 
6

innocence. Lastly, Defendant argues the State would not be prejudiced if the Motion 

was granted. 

STANDARD OF REVIEW 

Motions to withdraw guilty pleas are within the sound discretion of this 

Court.16 The Court may allow a defendant to withdraw a guilty plea upon a showing 

of any fair and just reason.17 When determining whether a fair and just reason exists, 

the Court weighs five factors: 

(1)Was there a procedural defect in taking the plea; 

(2)Did the defendant knowingly and voluntarily consent to the plea 

agreement; 

(3)Does the defendant presently have a basis to assert legal innocence; 

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

(5)Does granting the motion prejudice the State or unduly inconvenience the 

Court?18

These factors are not balanced, instead some of the factors alone may justify relief.19

A defendant’s statements to this Court during a plea colloquy are presumed to be 

16 Brown v. State, 250 A.2d 503, 504 (Del. 1969).

17 Super. Ct. Crim. R. 32(d). 

18 Scarborough v. State, 938 A.2d 644, 649 (Del. 2007). 

19 Id. 
7

truthful.20 If this Court were to determine that the plea was not voluntarily entered 

or was entered because of a mistake on behalf of the defendant regarding their legal 

rights, then a request to withdraw a guilty plea may be granted.21 The burden is 

placed on the defendant to prove that the plea was not entered voluntarily.22

ANALYSIS

I. Procedural Defect 

Defendant argues that both the TIS Form and Indictment are defective. 

Defendant is correct. The TIS Form and plea colloquy stated the maximum 

incarceration time Defendant faced was three years and six months at Level V. The 

charges Defendant pled guilty to actually carry the potential maximum incarceration 

time of four years and six months at Level V. 

Mr. Whitehead testified that before the plea hearing he advised Defendant the 

maximum penalty for the two charges was four years and six months at level 5.23 

Additionally, on the TIS Form the correct penalties were noted next to the charge 

but an error occurred when the two penalties were added.24

20 Somerville v. State, 703 A.2d 629, 632 (Del. 1997). 

21 Scarborough, 938 A.2d at 650. 

22 Somerville, 703 A.2d at 632. 

23 Tr. of Evidentiary Hr’g at 27:17-23, 28:1-23, 47:11-23, 48:1-5, 48:12-23, 49:1-10, 54:20-23, 

55:1-9, 55:15-20. 

24 Id. 
8

In Smith v. State, the defendant was sentenced to the statutory maximum of 

twenty-five years even though the plea form stated the maximum was twenty years.25

On remand, the defendant’s sentence was reduced to twenty years to match what the 

guilty plea form stated.26 The Supreme Court held the sentence being corrected 

resolved any error and no prejudice occurred to the defendant.27

Here, Defendant was sentenced to less time than what was stated on the TIS 

Form and in the plea colloquy. Due to this, the defect was cured. Defendant was not 

prejudiced in any way by being sentenced to less time than both the maximum 

mandatory time and time stated on the TIS Form. In fact, Defendant benefited from 

the error. 

Defendant is also correct regarding the defective Indictment. Defendant 

argues he could not be charged with a violation of 21 Del. C. § 4176A(a) without 

also being charged with another motor vehicle code violation.

28 Even though a 

procedural defect existed, Defendant waived it. Guilty pleas act as waivers to pre25 Smith v. State, 89 A.3d 478, 2014 WL 1017277, at *3 (Del. Mar. 13, 2014) (TABLE).

26 Id. 

27 Id. 

28 The violation of another motor vehicle code section does not include a violation of 21 Del. C. 

§ 4177. 
9

plea defects.29 The Supreme Court has stated any defects in indictments are waived 

when a defendant pleads guilty.30

II. Knowingly & Voluntarily Consent to Plea 

On October 4, 2021, Defendant signed the TIS Form and Plea Agreement. 

Defendant’s plea was made knowingly and voluntarily. First, during the plea 

colloquy, Mr. Whitehead told the Court he had gone over the forms line by line with 

Defendant.31 Mr. Whitehead stated he was satisfied that Defendant understood the 

contents of the forms and of the rights being given up by pleading guilty.32 Defendant 

was assisted by an interpreter during all proceedings. A thorough plea colloquy was 

conducted with Defendant in part as follows:

THE COURT: Did you hear everything your attorney, Mr. Whitehead, 

told me? 

DEFENDANT: Yes.

THE COURT: Do you have any questions about anything Mr. Whitehead 

told me about your proposed plea? 

DEFENDANT: No. 

29 State v. Bonaparte, 2012 WL 6945113, at *2 (Del. Super. Sept. 17, 2012). 

30 See Oliver v. State, 788 A.2d 528 (Del. 2001) (TABLE).

31 Tr. of Plea Colloquy at 3:5-7. 

32 Id. at 3:8-15. 
10

***

THE COURT: Okay. Do you have the plea documents in front of you? 

DEFENDANT: Yes. 

THE COURT: The plea, as Mr. Whitehead outlined, calls you to plead 

guilty to a charge of operating a motor vehicle causing death and leaving 

the scene of a collision resulting in death. Do you understand the two 

charges that you are pleading guilty to? 

DEFENDANT: Yes. 

THE COURT: Do you understand that you are not going to be sentenced 

today? Rather, there is going to be an investigation done, and you will 

come back later for sentencing. 

DEFENDANT: Yes. 

THE COURT: And do you also understand that there’s at least mandatory 

jail time that you face, and therefore, you will be taken into custody today? 

DEFENDANT: Yes. 

THE COURT: And also pursuant to the plea agreement, the State will be 

making other recommendations including restitution, a fine. Do you 
11

understand that there will be other things that the State will recommend at 

the time of your sentencing? 

DEFENDANT: Yes. 

THE COURT: And Mr. Whitehead will be present to represent you 

during sentencing. Do you understand that? 

DEFENDANT: Yes. 

THE COURT: The truth-in-sentencing guilty plea form, sir, is the form 

with all the questions on it. 

DEFENDANT: Yes.

THE COURT: Did you go over those questions with Mr. Whitehead?

DEFENDANT: Yes. 

THE COURT: When you provided the answers, were your answers 

truthful?

DEFENDANT: Yes. 

THE COURT: Do you understand by pleading guilty today there will be 

no trial in this case?

DEFENDANT: Yes.
12

THE COURT: And, therefore, you give up trial rights that are listed on 

one through seven on that form?

DEFENDANT: Yes. 

THE COURT: Did you go over each and every one of those trial rights 

with Mr. Whitehead? 

DEFENDANT: Yes. 

THE COURT: Did you understand them?

DEFENDANT: Yes. 

THE COURT: And, again, do you understand you waive those rights by 

pleading guilty today? 

DEFENDANT: Yes. 

*** 

THE COURT: Sir, the charge reads: On November 7th of last year, 2020, 

here in Sussex County, State of Delaware, while in the course of driving a 

motor vehicle, you did cause the death of Robert Root. Did you commit 

that offense?

DEFENDANT: Yes.
13

THE COURT: And as to the charge of leaving the scene of a collision 

resulting in death, again, on the same day, November 7th of last year, again 

in Sussex County, State of Delaware, you, being the driver of a vehicle 

involved in a collision resulting in death to Robert Root, did fail to 

immediately stop at the scene of such collision and provide your name, 

address, registration, driver’s license, to the person that you struck. Did 

you commit that offense? 

DEFENDANT: Yes. 

THE COURT: Is anybody forcing you to enter into this plea today? 

DEFENDANT: No.

THE COURT: This is how you want to resolve the case today?

DEFENDANT: Yes. 

THE COURT: I’ll find your pleas made knowingly, intelligently, and 

voluntarily. Judgment of conviction will be entered against you. A 

presentence investigation will be ordered.33

***

33 Id. at 3:21-23, 4:1-4, 4:8-23, 6:1-16, 7:12-23, 8:1-14. 
14

Defendant argues his pleas were not made voluntarily due to an error on the 

TIS Form. The form was marked “no” next to the question “[i]s this an offense which 

results in the loss of the right to own or possess a deadly weapon?34 However, right 

above that Defendant marked “yes” to another question that states, “[d]o you 

understand that a guilty plea to a felony will cause you to lose your right . . . to own 

or possess a deadly weapon[?]” During the remand hearing Mr. Whitehead testified 

that this was a clerical error and is confident Defendant was made aware he would 

lose the right to own or possess a deadly weapon.

35

As previously stated, the burden is on Defendant to prove that he did not 

voluntarily enter into the guilty pleas.36 However, a defendant’s statements to this 

Court during a plea colloquy are presumed to be truthful.37 Defendant indicated he 

understood all the rights he was giving up and adequately discussed the loss of those 

rights with Mr. Whitehead. Defendant told this Court that it was his intent to resolve 

the case with the guilty pleas. No one forced Defendant to enter guilty pleas, 

Defendant made the decision knowing the ramifications including the immigration 

consequences. The harmless error of checking the wrong box does not render the 

34 Defendant pled guilty to Operating a Motor Vehicle Causing Death and Leaving the Scene of a 

Collision Resulting in Death, the latter being a felony. 

35 Tr. of Evidentiary Hr’g at 29:7-23, 30:1-4, 50:14-23, 51:1-14. 

36 Somerville, 703 A.2d at 632. 

37 Id. 
15

guilty pleas involuntary. Defendant has failed to demonstrate that the guilty pleas 

were not entered voluntarily. 

III. Legal Innocence 

Defendant now claims he was factually innocent because the victim was 

walking on the wrong side of the road without a light and he could have asserted a 

choice of evils defense to avoid the car in front of him. With regard to the charge 

of Operation of a Vehicle Causing Death, Defendant asserts facts that have not been 

established and apparently in contravention to what was captured on a dash cam 

video.38 However, Defendant admitted his conduct to the police voluntarily, again 

wanting to take responsibility for his actions. Defendant’s admissions formed a 

basis for his guilty plea. Defendant cannot now reconstruct the events of November 

7, 2020, in a lopsided manner claiming legal innocence. This is especially true since 

Defendant elected not to testify at the remand hearing. 

With regard to the charge of Leaving the Scene of a Collision Resulting in Death, 

the Court agrees with the State that retroactively claiming it was the victim’s fault 

cannot apply to his decision to flee the scene. Defendant has not established legal 

innocence.

38 The Court has not viewed the video. 
16

IV. Adequate Legal Counsel 

Defendant claims Mr. Whitehead was ineffective for two reasons. First, 

Defendant claims any competent counsel would not have advised him to confess to 

the crime and instead would have advised Defendant to exercise his right against 

self-incrimination. Next, Defendant claims Mr. Whitehead was ineffective because 

he advised Defendant to accept a plea with a presentence investigation which did not 

benefit Defendant. 

A defendant seeking to withdraw a guilty plea for ineffective assistance of 

counsel pursuant to Superior Court Criminal Rule 32(d) must satisfy the test 

expressed in Strickland v. Washington.

39 Essentially, for Defendant to establish that 

Mr. Whitehead was ineffective he must show that (a) counsel’s actions fell below an 

objective standard of reasonableness and (b) there exists a reasonable probability 

that, but for counsel’s unprofessional errors, Defendant would have chosen to 

proceed to trial.40 The burden of proof is again on Defendant to show that Mr. 

Whitehead was ineffective.41

39 Strickland v. Washington, 466 U.S. 668 (1984). 

40 State v. Schofield, 2011 WL 882838, at *5 (Del. Super. Mar. 14, 2011); see also State v. 

Gunter, 2009 WL 3765505, at *1 (Del. Super. Nov. 10, 2009) (“A valid claim of ineffective 

assistance of counsel in a motion to withdraw a guilty plea must include actual assertions of 

attorney error and resulting prejudice – a defendant must establish that an attorney’s 

representation did not meet an objective standard of reasonableness and that but for the 

attorney’s errors, the defendant would have elected to have a trial instead of entering a guilty 

plea.”) (citations omitted).

41 Schofield, 2011 WL 882838, at *5.
17

Defendant’s current counsel is essentially “Monday morning quarterbacking” 

by arguing the decisions Mr. Whitehead and Defendant made together were wrong. 

Once again, Defendant sought to accomplish two things by turning himself in to the 

police. First, he wanted to take responsibility for his actions. Second, he wanted to 

make sure his family member who owned the car did not get in trouble. Defendant 

made this decision after Mr. Whitehead advised him that he did not have to turn 

himself into the police. 

Additionally, Mr. Whitehead testified that it his practice to advise clients of 

immigration consequences and is confident he advised Defendant of same. This is 

evidenced by the plea colloquy where Mr. Whitehead advised the Court and 

Defendant there could be plea consequences before the plea was entered.

Further, Defendant’s statements regarding Mr. Whitehead’s representation 

during the colloquy must be noted:

THE COURT: Have you had plenty of time to talk to Mr. Whitehead 

about this case? 

DEFENDANT: Yes. 

THE COURT: And are you satisfied with his representation of you? 
18

DEFENDANT: Yes.42

Defendant now argues that his current attorney, Mr. Gill, would have advised him 

differently and therefore Mr. Whitehead was ineffective. It is important to note that 

Defendant chose to turn himself in to do the right thing and credit is afforded to him 

for taking early responsibility for his actions. With that choice being made, 

Defendant went to Mr. Whitehead with an intent to do the right thing for his family 

and society. Included in Mr. Whitehead’s counsel to Defendant was potential 

penalties, immigration consequences, and loss of rights. Defendant knew all he was 

facing and still proceeded with the plea. There was no evidence elicited from 

Defendant or any other witness demonstrating Mr. Whitehead failed to advise 

Defendant properly.

Again, Defendant’s answers during the plea colloquy were presumed to be 

truthful and no evidence was offered to the contrary. Defendant advised he had 

enough time to speak with Mr. Whitehead, was satisfied with Mr. Whitehead’s 

representation of him, and he wished to conclude the matter with guilty pleas. 

Defendant is unable to produce any evidence showing Mr. Whitehead’s counsel fell 

below an objective level of reasonableness, and, but for Mr. Whitehead’s alleged 

ineffectiveness, that Defendant would have instead proceeded to trial. 

42 Tr. of Plea Colloquy at 7:6-11. 
19

V. Prejudice to State & Court Inconvenience 

Both the State and the Court will likely be prejudiced by allowing Defendant 

to withdraw his guilty plea. The Court takes notice of the victim’s family being 

present for Defendant’s guilty plea. If the Court were to allow withdrawal of the 

plea, the victim’s family would experience further emotional turmoil. Also, the 

Court would have to expend judicial resources. 

Finally, although the State has established prejudice, it “need not show . . . 

prejudice when a defendant has failed to demonstrate that the other factors support 

a withdrawal of the plea.”43 Here, Defendant has failed to demonstrate any fair and 

just reason for withdrawal of his guilty plea. 

CONCLUSION 

The Defendant’s Motion to Withdraw Guilty Pleas is DENIED. The

Defendant has not established a fair and just reason to permit withdrawal of the plea. 

IT IS SO ORDERED. 

/s/ Mark H. Conner

Judge Mark H. Conner

cc: Prothonotary 

43 State v. Barksdale, 2015 WL 5676895, at *6 (Del. Super. Sept. 14, 2015) (citations omitted).