IN THE SUPERIOR COURT OF THE STATE OF DELAWARE

STATE OF DELAWARE )

)

) Def. I.D. # 1809015387

 v. )

)

)

JERRY REED, )

)

Defendant. )

Submitted: June 17, 2022

Decided: July 27, 2022

Upon Defendant’s Amended Motion for Postconviction Relief (R-1)

DENIED

MEMORANDUM OPINION AND ORDER

Matthew C. Bloom, Esquire, Caroline Brittingham, Esquire, and Nichole Gannett, 

Esquire, Deputy Attorneys General, Department of Justice, 13 The Circle, 

Georgetown, DE 19947; Attorneys for State of Delaware.

Patrick J. Collins, Esquire, 8 East 13th Street, Wilmington, DE 19801; Attorney for

Defendant Jerry Reed.

KARSNITZ, R. J.
1

I. FACTUAL BACKGROUND

I will briefly summarize the facts, since they are set forth in great detail in my 

2020 opinion1and in the Delaware Supreme Court’s 2021 opinion.2 On September 

26, 2018, Delaware State Police responded to a report of a bullet-riddled body found 

in the weeds along the edge of Portsville Pond outside Laurel, Delaware. Police 

identified the body of Isaac Hatton (“ Mr. Hatton”). The homicide investigations 

identified Traevon Dixon (“Mr. Dixon”) and Jerry Reed (“Mr. Reed”) as the likely 

perpetrators of the crime. The investigation focused upon an incident which occurred 

around 8:30 p.m. at the Little Creek Deli in Laurel. Police investigators interviewed 

witnesses and located video surveillance. The video showed parts of what police 

described as a verbal altercation between the victim and co-defendants Messrs. 

Dixon and Reed.

After the incident in Laurel, several vehicles including one in which the victim 

traveled left Laurel. Investigators, through various witness interviews, determined 

that the victim and co-defendants traveled to Portsville Pond where Mr. Hatton was 

shot and killed. Co-defendants Dixon and Reed were charged with first degree 

murder3and possession of a firearm during the commission of a felony (“PFDCF”).

4

1

State v. Reed, 2020 WL 3002963 (Del. Super. June 4, 2020).

2 Reed v. State, 258 A.3d 807 (Del. 2021).

3

11 Del. C. § 636.

4

11 Del. C. § 1447.
2

II. PRODECURAL BACKGROUND

Mr. Dixon was first scheduled for trial. He pled guilty to second degree 

murder5and the weapons charge in late 2019. I sentenced Mr. Dixon to a total of 35 

years at Level 5 incarceration suspended after serving 20 years, and additional 

periods of probation.

Mr. Reed was scheduled for trial in January, 2020. Shortly before the trial, 

counsel for the parties notified me that an agreement had been reached as to pleas to 

be entered by Mr. Reed. On January 13, 2020 Mr. Reed pled guilty to manslaughter6

and nolo contendere to the weapons charge. Notably Mr. Reed's plea involved a 

lesser offense than that to which his co-defendant Mr. Dixon had pled guilty. I 

conducted the formal and typical plea colloquy with Mr. Reed required of me by 

law, including the Superior Court Criminal Rules.7 Mr. Reed was given appropriate 

advice at the plea hearing, including the crimes to which he was entering a plea, the 

effect of the pleas including the effect of the nolo contendere plea, and the potential 

sentences. Mr. Reed signed a Plea Agreement as well as a Truth-in-Sentencing 

5

11 Del. C. § 635.

6

11 Del. C. § 632.

7 Super. Ct. Crim. R. 11.
3

Guilty Plea Form which outlined what was happening. I also reviewed with Mr. 

Reed the important rights he surrendered by pleading as he did. Finally, Mr. Reed

admitted to me he was guilty of Manslaughter, and that the nolo contendere plea to 

the weapons charge was as effective as a plea of guilty. In short, I was fully satisfied 

Mr. Reed entered his pleas knowingly, voluntarily and intelligently.

Eight days after entering his pleas, Mr. Reed wrote to me asking to withdraw 

them.8 Since I am not permitted to consider motions from represented defendants,

9

I 

sent a copy of Mr. Reed's letter in which he sought to withdraw his pleas to his two 

trial counsel (“Trial Counsel”).

I sentenced Mr. Reed on February 28, 2020. Despite having pled guilty to a 

lesser charge than Mr. Dixon, I sentenced him to a term almost identical to that 

imposed upon Mr. Dixon, for reasons I articulated in my 2020 opinion. 

Mr. Reed did not file an appeal to the Delaware Supreme Court. Rather, he 

filed three pro se motions with this Court. First, Mr. Reed filed a motion to withdraw 

his pleas (the “Rule 32(d) Motion”).

10 That motion was dated “February __, 2020” 

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

9 Super. Ct. Crim. R. 47; Jones v. State, 2020 WL 2280509 (Del. May 7, 2020).

10 Super. Ct. Crim. R. 32(d). Mr. Reed asserted the following eight grounds: (i) insufficient 

evidence of his guilt; (ii) the ballistics evidence suggested that there was only one shooter; (iii) the 

State deprived him of equal protection under the law by entering into cooperation agreements with 

certain witnesses rather than prosecuting them; (iv) Trial Counsel failed to alert him to a lie in the 

police reports; (v) the physical evidence proved his innocence; (vi) Mr. Dixon gave a prior 

inconsistent statement to the police about whether Mr. Reed ordered him to shoot Mr. Hatton; (vii) 

Trial Counsel should not have told him to accept the plea because Mr. Dixon already admitted to 
4

and docketed on March 2, 2020; it is therefore likely that the motion was mailed 

prior to sentencing on February 28, 2020, but docketed thereafter. 

Second, on March 31, 2020, Mr. Reed filed a motion for postconviction relief

(the “Rule 61 Motion”).

11 Because several of his claims involved the ineffective 

assistance of Trial Counsel, I required Trial Counsel to file an affidavit responding 

to these claims (the “First Trial Counsel Affidavit”).

Third, on April 13, 2020, Mr. Reed filed a motion seeking modification of his 

sentence (the “Rule 35 Motion”).

12

In my 2020 opinion I denied all three motions.

Mr. Reed filed a timely Notice of Appeal with the Delaware Supreme Court. 

Mr. Reed raised two issues on appeal. First, he contended that his right to an 

shooting Mr. Hatton; and (viii) Trial Counsel told him that he should plead guilty rather than fight 

a system that is biased against “Black people and minorities.” A157–59.

11 Super. Ct. Crim. R. 61. Mr. Reed asserted the following seven grounds: (i) Trial Counsel were

ineffective for not filing a motion to withdraw the plea upon Mr. Reed's request; (ii) Trial Counsel 

coerced his guilty plea by telling Mr. Reed, “that if [he] go[es] to trial, [he] was going to lose and 

get found guilty either way because [he] was going up against a system that's already against 

Blacks and minorit[ies] to lose;” (iii) the State denied him “equal protection of the law” by entering 

cooperation agreements with certain witnesses; (iv) I was biased against him at sentencing; (v) the 

State brought up his past crimes at sentencing, including conduct for which he had not been 

convicted; (vi) Trial Counsel failed to present evidence of his innocence, including that Mr. Dixon 

made a prior inconsistent statement; and (vii) the police lied in their report. A163–64. 

12 Super. Ct. Crim. R. 35. Mr. Reed asserted the following four grounds: (i) the State improperly 

referred to past crimes for which he had never been convicted; (ii) he had accepted responsibility 

for his actions and that he accepted “the fact that by [his] being a part of instigating the fight is a 

reason that the victim was killed which is a big part in this;” (iii) “the presumptive sentence for a 

charge of Manslaughter is 2–5 years at level 5 incarceration and I was sentenced to 15 years for 

Manslaughter and the penalty range is ‘2–25 years;’ ” and (iv) Trial Counsel advised that he would 

receive a seven to ten-year sentence. A166.
5

autonomous determination of his plea was violated when Trial Counsel refused to 

file his requested motion to withdraw his guilty plea prior to sentencing and when I 

refused to consider his timely pro se motion to withdraw his plea. Second, he 

contended that I erred in denying his Rule 61 motion for postconviction relief 

because he was deprived of the effective assistance of counsel when Trial Counsel 

gave him certain advice concerning his guilty plea and they failed to file a motion 

withdrawing his guilty plea. The Delaware Supreme Court held that, because Mr. 

Reed did not fairly present his separate autonomy challenge below, he had waived 

his autonomy claim. Because Mr. Reed's challenges focused on the propriety of 

Trial Counsel's representation during the plea process leading up to sentencing, the 

Delaware Supreme Court considered his challenges in the context of his Rule 61

ineffective assistance of counsel claims under the legal standards of Strickland v. 

Washington13 as adopted in Delaware.14

The Delaware Supreme Court reversed my 2020 opinion, and remanded the 

case to this Court to conduct an evidentiary hearing and, after a full hearing, to 

address the following questions under the two-prong test of Strickland: (1) were 

Trial Counsel ineffective with respect to legal advice which may have induced Mr. 

Reed's guilty plea; (2) were Trial Counsel ineffective for not filing a motion to 

13 466 U.S. 668 (1984).

14 Albury v. State, 551 A.2d 53 (Del. 1988).
6

withdraw Mr. Reed’s guilty plea prior to sentencing; and (3) did the failure to file a 

motion to withdraw Mr. Reed’s guilty plea prior to sentencing prejudice Mr. Reed.

I will refer to (1) as the “Advice Claim” and (2) and (3), together, as the “Withdrawal 

Claim.” 

On January 6, 2022, Mr. Reed filed an Amended Motion for Postconviction 

Relief (the “Amended Rule 61 Motion”). On February 8, 2022, Trial Counsel filed 

another joint affidavit (the “Second Trial Counsel Affidavit”) in response to the 

Amended Rule 61 Motion. The parties then agreed that it would be preferable to 

hold an evidentiary hearing and then proceed with briefing. An evidentiary hearing 

was held on March 11, 2022. Postconviction Counsel submitted his Opening PostHearing Brief on April 21, 2022, the State submitted its Answering Post-Hearing 

Brief on May 23, 2022, and Postconviction Counsel submitted his Reply Brief on 

June 17, 2022. This is my decision on the ineffective assistance of counsel claims 

under the Amended Rule 61 Motion.

III. LEGAL STANDARD

Claims of ineffective assistance of counsel are assessed under the two-part 

standard established in Strickland, as applied in Delaware. Under Strickland, Mr. 

Reed must show that (1) counsel’s representation “fell below an objective standard 

of reasonableness” (the “performance prong”); and, (2) the “deficient performance 
7

prejudiced [his] defense” (the “prejudice prong”).15 In considering the performance 

prong, the United States Supreme Court stated that “[s]trategic choices made after 

thorough investigation of law and facts relevant to plausible options are virtually 

unchallengeable.”16 Strickland requires an objective analysis, making every effort 

“to eliminate the distorting effects of hindsight” and to “indulge a strong 

presumption that counsel’s conduct falls within the wide range of reasonable 

professional assistance.”17 Moreover, “strategic choices about which lines of 

defense to pursue are owed deference commensurate with the reasonableness of the 

professional judgments on which they are based.”18 As to the performance prong, 

Mr. Reed must show that counsel’s decisions were not reasonable strategic 

decisions. 

As to the prejudice prong, Mr. Reed must demonstrate that there exists a 

reasonable probability that, but for counsel’s unprofessional errors, the outcome of 

the trial would have been different.19 Even if counsel’s performance were

professionally unreasonable, it would not warrant setting aside the judgment of 

conviction if the error had no effect on the judgment.20 A showing of prejudice 

15

 Strickland at 687.

16

 Id. at 690.

17

 Id. at 689. 

18

 Id. at 681.

19

 Id. at 687; Zebroski v. State, 822 A.2d 1038, 1043 (Del. 2003); Wright v. State, 671 A.2d 

1353, 1356 (Del. 1996).

20

 Strickland, at 691.
8

“requires more than a showing of theoretical possibility that the outcome was 

affected.”

21

 

Strickland teaches that there is no reason for a court deciding an ineffective 

assistance claim to approach the inquiry in a particular order, or even to address both 

parts of the inquiry if the defendant makes an insufficient showing on one. In 

particular, a court need not determine whether counsel's performance was deficient 

before examining the prejudice suffered by the defendant as a result of the alleged 

deficiencies. If it is easier to dispose of an ineffectiveness claim on the ground of

lack of sufficient prejudice, that course should be followed.22 In every case the court 

should be concerned with whether, despite the strong presumption of reliability, the 

result of the particular proceeding is unreliable because of a breakdown in the 

adversarial process that our system counts on to produce just results.

23

 

In its 2021 decision, the Delaware Supreme Court resolved several of the 

performance prong and prejudice prong questions with respect to both the Advice 

Claim and the Withdrawal Claim. 

Advice Claim

With respect to the Advice Claim, Mr. Reed claims that his counsel told him 

that he would be convicted irrespective of his guilt because of his race. When he 

21 Frey v. Fulcomer, 974 F.2d 348, 358 (3d Cir. 1992). 

22 Strickland at 697.

23 Id. at 696.
9

entered his plea, and when he engaged in the plea colloquy with the trial judge, Mr. 

Reed claims to have been operating under that advice.24 The Delaware Supreme 

Court and the State (without conceding the point) agreed that, if counsel told Mr. 

Reed words to the effect that “a Black man will not receive a fair trial in Sussex 

County,” both the performance and prejudice prongs of Strickland would be met and 

counsel’s representation would have been ineffective.25 Thus, the Advice Claim goes 

to the issue of the voluntariness of his plea itself, and resolution of this issue involves 

determining whether the plea can stand. Given what the Supreme Court viewed as 

the generality and ambiguity of the First Trial Counsel Affidavit, it directed me to 

hold an evidentiary hearing to determine exactly what advice was given to Mr. Reed

relating to the Advice Claim, and whether and how such advice affected the 

voluntariness of his plea. Thus, the critical evidence from the evidentiary hearing is 

exactly what Trial Counsel told Mr. Reed in this regard.

The Delaware Supreme Court noted:

Of particular importance is the precise content of counsel's advice to 

Mr. Reed about how his race, or the racial mix of the Sussex County 

jury pool, would affect his trial prospects and the impact of any such 

advice on the voluntariness of his plea.26

24 As discussed further below, this would mean that Mr. Reed was untruthful in answering my 

questions during the colloquy.

25 Reed v. State, 258 A.3d at 825-826.

26 Id. at 831.
10

Withdrawal Claim

With respect to the performance prong of the Withdrawal Claim, the Supreme 

Court held:

[A] criminal defendant's control of the objectives 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 the motion with other counsel or pro se. If 

the defendant's reasons for filing the motion to withdraw include an 

assertion that his or her counsel has been ineffective or coerced the 

defendant into pleading, then defense counsel should ask the court to 

appoint new unconflicted counsel to handle the filing of the motion. 

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. 

This, of course, does not mean that counsel may not urge the client to 

reconsider if counsel believe that a motion to withdraw the plea is 

unwise or contrary to the client's interests. As noted above, once the 

plea is accepted by the court, but before sentencing, a defendant's right 

to withdraw the plea is not unqualified (unlike his decision to plead 

prior to the court's acceptance of it). Rather, the defendant must satisfy 

the court that he has a “fair and just” reason.27 (Footnotes and Citations 

Omitted)

Since Mr. Reed asked Trial Counsel to file a motion to withdraw his guilty plea 

before sentencing and did not rescind that request, and since Trial Counsel failed to 

file the motion or clear the way for Mr. Reed to file it himself, the Delaware Supreme 

Court held that Trial Counsel’s failure constituted deficient performance under the 

first prong of Strickland. 

27 Id. at 829.
11

With respect to the prejudice prong of the Withdrawal Claim, the Delaware 

Supreme Court stated that, in order for Mr. Reed to prevail under Strickland, he still 

must show that Trial Counsel's failure to file the motion to withdraw his guilty plea 

caused him prejudice. The Delaware Supreme Court held that, to satisfy the 

prejudice prong of Strickland, Mr. Reed would have to demonstrate that, but for 

Trial Counsel’s deficient performance, he “would have insisted on going to trial and 

that the trial court would have granted his motion to withdraw his plea.”28 In my 

2020 opinion, because I did not find that that the performance prong had been met 

with respect to the Withdrawal Claim, I did not address the prejudice prong of the 

Withdrawal Claim, leaving the record undeveloped. Thus, the Delaware Supreme 

Court directed me on remand, in light of its holding on the performance prong, to 

conduct an evidentiary hearing and additional fact-finding on the prejudice prong. 

Specifically, the Delaware Supreme Court asked me to consider the five 

Scarborough29 factors to determine that question.30

The Delaware Supreme Court noted:

The Superior Court should also determine, through additional factfinding, whether Mr. Reed at any point rescinded his instructions to 

counsel to withdraw his guilty plea and whether his counsel 

appropriately considered the Scarborough factors when they decided to 

override Mr. Reed's instructions regarding the plea withdrawal motion. 

The Superior Court should then address Mr. Reed's Rule 61 challenges 

28 Id. at 829-830.

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

30 Reed v. State at 829-830.
12

considered herein in view of the evidentiary record as further 

developed.31

IV. EVIDENTIARY HEARING

At the March 11, 2022 evidentiary hearing, Mr. Reed testified and called his 

two Trial Counsel as witnesses.32 I also questioned two of the witnesses. A summary 

of their testimony follows.

Jerry Reed

Mr. Reed had a meeting with both Trial Counsel the weekend before final case 

review.33 Trial Counsel explained the plea offer to Mr. Reed and told him he had 

three days to decide.34 Trial Counsel told him that going to trial as opposed to taking 

a plea was a gamble. Mr. Reed stated that he did not want to accept the plea. Trial 

Counsel asked Mr. Mr. Reed to sign the plea agreement in case he changed his mind 

and explained they would be speaking to his family members.35 Upon questioning 

from me, Mr. Reed explained he signed the plea agreement despite not wanting to 

31 Id. at 831 (“As the United States Supreme Court in Strickland held, courts must “judge the 

reasonableness of counsel's challenged conduct on the facts of the particular case, viewed as of the 

time of counsel's conduct.”)

32 The witnesses were sequestered.

33 Billing records and other testimony indicate the meeting was January 2, 2020. See, A846. 

34 A281.

35 A283.
13

plead guilty because Trial Counsel advised him that, by signing it beforehand, if he 

changed his mind, “it’s already signed and ready.”36

Mr. Reed testified that Trial Counsel returned the following evening and Mr. 

Reed told them he had not changed his mind and still wanted to go to trial.37 Mr. 

Reed was transported to court on January 6, 2020 and rejected the plea offer.38 

On the trial date of January 13, 2020, Mr. Reed was transported to court39 Mr. 

Reed testified that he was dressed and ready for trial when Trial Counsel met with 

him.40 At that point, Mr. Reed testified that Trial Counsel tried to convince him for 

“like, an hour and a half” that it was in his best interest to take the plea.41 They told 

him his odds had gone down and that what once was a 50/50 was now an 80/20 

chance of losing at trial.42 They told him that if he went to trial, “you willingly put 

your life in the hands of a system that’s already set up to go against blacks and 

minorities.”43 Because of this, he might lose at trial and could get a life sentence.44

Specifically, Trial Counsel explained that the jury would not be his peers; instead it 

would be all older people and white people. These people, according to trial counsel, 

36 A327. 

37 Id.

38 See, A70-82. 

39 A287. 

40 A287.

41 Id.

42 A288.

43 A289.

44 A316.
14

would not know where he came from, what he has experienced, or why he lied to 

police.45 This was the only meeting in which Trial Counsel discussed the makeup of 

the jury with Mr. Reed.

46

Trial Counsel told Mr. Reed that he had lost every murder trial he had 

defended in Sussex County but won each one in Kent County.47 Trial Counsel told 

Mr. Reed that the jury system in Sussex is more “messed up” than in Kent, and 

“there’s no win in Sussex County.”48

Trial Counsel also discussed the case of another defendant who had been in 

pretrial detention with Mr. Reed. Trial Counsel told Mr. Reed that the other 

defendant was offered the same plea as Mr. Reed, went to trial, and was sentenced 

to life plus 32 years.49

Trial counsel urged Mr. Reed to consider that if he took the plea, he would be 

home before his young daughter graduated high school.50 

Trial Counsel showed Mr. Reed a handwritten paper listing various exposure 

times for a plea vs. a trial. The paper lists under the heading “trial” an incarceration 

exposure of twenty years to life if he was convicted of Murder Second Degree and 

45 A290. 

46 A308, A316.

47 A296. 

48 A290. 

49 Id. 

50 A291.
15

the firearms charges.51 The Manslaughter scenario was also listed, with a minimum 

mandatory sentence of twelve years.52 The plea scenario listed a minimum 

mandatory of seven years.53 Trial Counsel told Mr. Reed that if he took the plea he 

could get twelve years, and since he had already served two years, that would mean 

he would serve ten more years.54 Trial Counsel advised Mr. Reed he might get the 

mandatory sentence, as Dixon had.55

On January 13, 2020, instead of going to trial, Mr. Reed pled guilty to 

Manslaughter56 and nolo contendere to the weapons charge. I conducted the formal 

and typical plea colloquy with Mr. Reed required of me by law, including the 

Superior Court Criminal Rules.57 Mr. Reed was given appropriate advice at the plea 

hearing, including the crimes to which he was entering a plea, the effect of the pleas 

including the effect of the nolo contendere plea, and the potential sentences. Mr. 

Reed signed a Plea Agreement as well as a Truth-in-Sentencing Guilty Plea Form 

which outlined what was happening. I also reviewed with Mr. Reed the important 

rights he surrendered by pleading as he did. Finally, Mr. Reed admitted to me he was 

51 A428.

52 Id.

53 Id.

54 A294. 

55 A295. 

56 11 Del. C. § 632.

57 Super. Ct. Crim. R. 11.
16

guilty of manslaughter, and that the nolo contendere plea to the weapons charge was 

as effective as a plea of guilty.

The day before sentencing, Trial Counsel gave Mr. Reed a draft “remorse 

letter” for Mr. Reed to rewrite in his own words and read to me at sentencing.58 Mr. 

Mr. Reed did so.59

Mr. Reed was asked by the State why, if he had an unwavering desire to 

withdraw his guilty plea, he did not speak up at sentencing. Mr. Reed responded 

that he was told by Trial Counsel only to read the remorse letter and that saying 

anything else could jeopardize him.60 Mr. Reed said that he had written a letter to 

me about withdrawing the plea, but had heard nothing back. When asked why he 

never raised this, he stated that he “hoped” I would say something about it.61

I asked Mr. Reed directly why he did not speak up at sentencing about his 

desire to withdraw his guilty plea. Mr. Reed again stated that he had been told by 

Trial Counsel only to read his remorse letter. He also thought the issue was being 

dealt with by me, since he had written letters to me and never received anything 

back.62

58 A304, A429-430.

59 A431-433.

60 A321-322.

61 A322-323.

62 A330-331.
17

After entry of his guilty plea, Mr. Reed notified Trial Counsel that he wanted 

to withdraw it. Trial Counsel told Mr. Reed he would check into the possibility of 

withdrawing the plea, based upon Mr. Reed’s allegations that a witness had changed 

his story in a statement to police.63 At their next meeting, however, Trial Counsel 

told Mr. Reed that his allegations had not panned out, and that it was not in Mr. 

Reed’s best interest to withdraw his plea. Trial Counsel told Mr. Reed there was no 

legal basis for plea withdrawal.64

On cross-examination, Mr. Reed stated that, while incarcerated, he had 

indicated to Trial Counsel that he would entertain a guilty plea to Manslaughter.65 

He had signed off on a guilty plea to Manslaughter on two separate occasions: 

January 3, 2020 and January 13, 2020.66 He had familiarity with plea agreements 

because he had prior arrests and felony cases in both Sussex County and Kent 

County, and had been represented by counsel in those cases.67 Those counsel had 

discussed with Mr. Reed the differences between a jury trial and a bench trial, and 

all but one of those cases had been resolved by guilty pleas; the one case was 

63 A300. 

64 A302.

65 A307.

66 A308.

67 A309.
18

resolved by a bench trial.68 Mr. Reed had never before signed a plea agreement 

before “just in case” he needed it later.

In the week before trial, Mr. Reed discussed the plea with his mother and 

girlfriend, but they did not ask him to plead guilty if he did not want to do so.69

Ronald Phillips, Esquire

Mr. Phillips discussed the plea offer with Mr. Reed on January 2 and 3, 2020. 

Although he did not think Mr. Reed signed the plea just “in case he changed his 

mind,”70 he was not particularly confident Mr. Reed would go through with the plea,

and he was not surprised when Mr. Reed rejected the plea on January 6, 2020.71

Mr. Phillips did not recall whether he discussed with Mr. Reed the odds of 

success at trial, but said it was possible.72 Mr. Phillips testified that his record on 

murder trials in Sussex County was “0 for 3” while his record in Kent County was 

“split.”73 He did not recall mentioning the sentence in another murder case that went 

to trial.74 As to what sentence Mr. Reed would get if he pled guilty, Mr. Phillips 

68 A310.

69 A313.

70 A338.

71 A341.

72 A342. 

73 A389.

74 A350.
19

testified he probably told him his idea of what it would be, but that the final decision 

was up to me.75

Mr. Phillips was 99% certain that they did not discuss the jury or its makeup 

during the meetings on the morning of trial, June 13, 2020.

76

 It would have happened 

in the weeks leading up to trial.77 Mr. Phillips would have had more than one 

conversation with Mr. Reed about the jury, one a broad overview and another, more 

specific conversation closer to trial.78 During these conversations, Mr. Phillips would 

have told Mr. Reed that it is very difficult to get a diverse jury in Sussex County but 

that Trial Counsel would work very hard to get a diverse jury.79 Mr. Phillips never 

told Mr. Reed—or, for that matter, any other client—that he could not get a fair trial 

in Sussex County.80 Mr. Phillips never told Mr. Reed that the jury would decide the 

case based on his race.81 

With respect to his statement in the Trial Counsel Affidavit that “juries 

in Sussex tend to be older and whiter than the general population,” Mr. Phillips stated 

that he had “probably objected to every jury panel I’ve ever had about the makeup 

75 A348.

76 A354.

77 Id.

78 A380.

79 A383. 

80 A352, A388.

81 A387.
20

of the jury.”82 However, he “would not have said he couldn’t have gotten a fair trial 

period.”83 Mr. Phillips testified that the context of the conversation would have been 

about the jury pool itself and that he would be objecting if he was unhappy with the 

jury pool.84 Having practiced in all three Delaware counties, Mr. Phillips testified as 

to Sussex County, “having been here for a long time, you know, for a long time it 

was difficult to look out into a jury panel and see a head that wasn’t white or bald.”85

This was relevant to Mr. Phillips because the people who ended up in the jury panel 

do not have the same experience with criminal law enforcement as do the 

defendants.

86

 Mr. Phillips testified that in Sussex jury panels, “growing up here, 

there’s a mindset, I think, when you get a particular group of people, particularly the 

older and whiter group.”87 That mindset it more conservative. Their experience with 

law enforcement is mostly positive, so they believe that if the defendant was arrested, 

he is probably guilty. Mr. Phillips acknowledged “it’s uncomfortable for people to 

say, but it’s just the fact.”88 Mr. Phillips went on to explain that everyone comes 

into jury service with their own implicit biases. Mr. Phillips explained diversity helps 

to hold people accountable in the jury room.89 He had learned this from professional 

82 A351-352.

83 A352.

84 A353.

85 A384. 

86 Id.

87 A385. 

88 Id.

89 A386.
21

seminars.90 In a trial, evidence would have been presented involving guns, possible 

drug deals and other activities that would be negatively perceived by an older and 

whiter jury.91 Phillips gives the same advice to all his clients, including his white 

clients.92

Mr. Phillips did not consider his statements to Mr. Reed about the age and 

racial makeup of the jury to constitute ineffective assistance of counsel under the 

performance prong of Strickland.

93

Mr. Phillips had little recollection of the typed and handwritten versions94 of 

the remorse letter that Mr. Reed was to read at sentencing. He did not recall if he 

typed it up or Ms. Murray did.95 He thought the typewritten document was done first, 

because Trial Counsel had discussed with Mr. Reed what he would say at 

sentencing.96

On June 13, 2020, the day of trial, Mr. Phillips met with Mr. Reed when the 

courthouse doors opened. Mr. Phillips and the State negotiated a plea agreement for 

ten years, and Mr. Phillips at some point before 10:52 a.m. wrote to the State, “yes 

90 A386.

91 A395-396. 

92 A388–89.

93 A358.

94 A429-433.

95 A360. 

96 A361. 
22

to plea.”97 After that, Mr. Phillips stated that Mr. Reed informed him he wanted to 

withdraw the guilty plea several times.98 He was familiar with the Scarborough

factors, particularly because a research assistant had provided a memo about them.99

Mr. Phillips told Mr. Reed that, after checking into the possibility that a witness 

changed his story, the story was inaccurate and thus there was no basis for plea 

withdrawal.100

Julianne Murray, Esquire

Ms. Murray testified briefly. She did not recall whether she attended the 

January 2, 2020 meeting in which the plea was discussed with Mr. Reed.

101 She did 

recall speaking with Mr. Reed’s girlfriend after Mr. Reed rejected the plea on 

January 6, 2020 and visiting Mr. Reed again just before trial.102 Ms. Murray testified 

she would have discussed with Mr. Reed whether he had changed his mind about 

the plea based upon discussions with his girlfriend and his family.

103

Ms. Murray recognized the handwritten paper104 with the various sentence 

possibilities and the circled number ten as being written by her.

97 A465.

98 A355-356.

99 A357, A466.

100 A359.

101 A402.

102 A405.

103 Id.

104 A428.
23

Ms. Murray attended the June 13, 2020 meeting with Mr. Reed. She did not 

specifically recall what was said in this meeting, except that her impression was that 

Mr. Reed was still weighing whether to take the plea.105 Ms. Murray also did not 

recall any discussion of race or jury makeup at that morning meeting.

106

Ms. Murray was not involved in the discussions with Mr. Reed about 

withdrawing his plea.107 She was, however, aware of Mr. Reed’s several letters and 

motions regarding his desire to withdraw his plea.108 Ms. Murray testified that Mr. 

Reed never rescinded his request to withdraw his plea.109

Ms. Murray never heard Mr. Phillips make statements to Mr. Reed that he 

could not get a fair trial in Sussex County because he was black, nor did she make 

such statements herself.110 Ms. Murray, like Mr. Phillips, did not consider Mr. 

Reed’s allegation that he took the plea because of comments regarding race made by 

Trial Counsel to be a reason to move to withdraw the plea.111

Ms. Murray recalled typing up the remorse letter Mr. Reed was to put in his 

own words and read at sentencing. She did not recall the handwritten version.112 She 

105 A409.

106 A409–10.

107 A411.

108 A414.

109 Id.

110 A424.

111 A415.

112 A416.
24

did not recall which came first.113 Ms. Murray did not recall what advice she gave to 

Mr. Reed as to what to say at sentencing, but testified, “I imagine I probably would 

have given him some advice regarding what he could say or what would be advisable 

to say.”114

V. ADVICE CLAIM

The allegations in Mr. Reed’s Amended Rule 61 Motion concern privileged 

communications between Mr. Reed and Trial Counsel. Mr. Reed and Trial Counsel 

disagree over whether absolute comments were made, the nature of any related 

discussions, and when those discussions took place. Their accounts are wholly 

inconsistent. Thus, my factfinding mission requires me to determine whose 

testimony to credit: Mr. Reed’s, on the one hand, or Trial Counsel’s, on the other. 

Whereas Trial Counsels’ testimonies largely corroborated each other, within the 

constraints of memory, Mr. Reed’s account is uncorroborated, inaccurate, and selfserving, and it flatly contradicts his representations at the plea colloquy.

Performance Prong

Trial Counsel have consistently denied telling Mr. Reed that he would not 

receive a fair trial because of his race. In their First Trial Counsel Affidavit, Trial 

Counsel generally denied Mr. Reed’s allegation.115 While a general denial was 

113 Id.

114 A417.

115 A169–72.
25

inadequate given the gravity of the allegation,116 it was still a denial. In their Second 

Trial Counsel Affidavit, Trial Counsel specifically denied advising Mr. Reed that he 

would not get a fair trial because of his race.

117

 During the evidentiary hearing, Mr. 

Phillips and Ms. Murray maintained that they did not tell Mr. Reed he could not get 

a fair trial because of his race.118

Mr. Reed characterizes Trial Counsel’s testimony as “bereft of detail” in 

comparison to his own.119 Mr. Reed’s account of the January 13, 2020 meeting may 

be detailed, but in my view those details are not credible. His account is directly 

contradicted by two witnesses, Mr. Phillips and Ms. Murray, and contains notable 

inaccuracies.

First, Mr. Reed claims that Mr. Phillips told him during the January 13, 2020

meeting that he could not receive a fair trial in Sussex County because of his race.120 

As detailed above, Mr. Phillips and Ms. Murray both deny making any such 

statement to Mr. Reed. Ms. Murray did not recall any conversation about the 

makeup of the jury pool that morning, and Mr. Phillips was 99% sure it did not 

happen then.

116 See Reed, 258 A.3d at 826.

117 A269–70.

118 A352, A354, A409–10, A424.

119 Opening Br. 16.

120 Opening Br. 19–22.
26

Second, Mr. Reed claims that Mr. Phillips told him he lost both murder trials 

he defended in Sussex County but won each one he tried in Kent County, to 

demonstrate “how the system [is more] messed up in Sussex County than it is in 

Kent County and there’s no winning in Sussex County.”121 This is demonstrably not 

Mr. Phillips’ record, suggesting that the stark contrast between Kent County and 

Sussex County does not exist. It is improbable that Mr. Phillips, whose preference 

“after all that preparation would have been just to go to trial,”122 would misrepresent 

his record to persuade Mr. Reed to plead guilty. Ms. Murray did not recall any 

discussion of Mr. Phillips’s record during the January 13 meeting.123

Third, Mr. Reed claims that Mr. Phillips had previously characterized Mr. 

Reed’s odds of succeeding at trial as 50/50 but dropped them to 20/80 during the 

exchange about the unfairness of the system.124 Mr. Phillips doubted he would have 

expressed Mr. Reed’s chance numerically, and Ms. Murray did not recall it.125

Fourth, Mr. Reed claims that Mr. Phillips shared “the cautionary tale of 

Macarthur Risper”—who rejected a plea offer, went to trial, and received a sentence 

of life plus 32 years in prison—to persuade him to accept the plea.126 Mr. Phillips 

121 A296–97; see also Opening Br. 19 (referring to Mr. Phillips’s testimony on this matter).

122 A347.

123 A410.

124 Opening Br. 19–20; A288–89.

125 A342, A350, A409–10.

126 Opening Br. 19; A297–98.
27

did not recall doing that and did not believe he would.127 Ms. Murray also did not 

recall any discussion about other murder cases during the January 13, 2020

meeting.128 

Fifth, Mr. Reed claims that Trial Counsel advised him that he would receive 

only a 12 year minimum mandatory sentence if he accepted the State’s plea offer 

because his co-defendant, Mr. Dixon, also received a minimum mandatory 

sentence.129 Mr. Reed relies on Ms. Murray’s handwritten notes from a meeting with 

Mr. Reed, where the number “10” is circled next to charges in the plea offer.130 Mr. 

Reed says that Trial Counsel presented 10 years as the remainder of the 12-year 

sentence (he had already served two).131 However, the minimum mandatory sentence 

for Manslaughter and PFDCF, is 7 years, not 12 years.132 This is reflected in Ms. 

Murray’s notes where, next to the circled “10,” she identified the plea offer’s penalty 

range as “7–50” years.133 These notes do not corroborate Mr. Reed’s claim that Trial 

Counsel were assuring him that he “should get the minimum” because his 

“codefendant got the minimum of everything.”134 Rather, the notes support the 

127 A350.

128 A410.

129 Opening Br. 19; A294–95; see also Opening Br. 24–25.

130 A428.

131 Opening Br. 19, 25.

132 Manslaughter is a class B felony, and the mandatory minimum sentence for class B felonies is 

two years at Level V. 11 Del. C. §§ 632, 4205(b)(2). The mandatory minimum penalty for Reed’s 

PFDCF conviction was five years at Level V. 11 Del. C. § 1448(e)(1)b.

133 A428.

134 A295.
28

testimony of Mr. Phillips, who believed Mr. Reed would receive a 10- to 15-year 

sentence, but not the minimum.135

Sixth, Mr. Reed claims that Mr. Phillips, and only Mr. Phillips, came to the 

prison on January 12, 2020 to discuss the State’s plea offer in person.136 

Contemporaneous text messages show, however, that Ms. Murray went to the prison 

on January 12, 2020 while Mr. Phillips stayed behind to prepare for trial.137 Ms. 

Murray confirmed that she was the one who visited Reed that day.138 

Seventh, Mr. Reed claims that Mr. Phillips authored the notes about 

sentencing on January 13, 2020 while urging him to accept the State’s plea offer.139 

But Mr. Phillips denied writing it, and Ms. Murray identified it as her handwriting.140

Eighth, and of great importance to me, Mr. Reed’s account is contradicted by 

his own statements at the time of the plea. Mr. Reed told me that he was satisfied 

with Trial Counsel’s representation of him.141 He testified that no one forced him to 

plead guilty.142 He completed a TIS Form and affirmed that his answers were 

truthful.143 Absent clear and convincing evidence to the contrary, Mr. Reed’s 

135 A377.

136 A314–15.

137 A450–52.

138 A405.

139 See A292–93.

140 A346–47, A406.

141 A80.

142 A83–84.

143 A81, A89.
29

answers on the TIS Form and his statements during the plea colloquy are presumed 

to be truthful.144 Mr. Reed’s own self-serving, uncorroborated testimony is not clear 

and convincing evidence.

I find Trial Counsel credible in their testimony that they never said to Mr. 

Reed that “no Black man can ever get a fair trial in Sussex County.” They testified 

that the issue of race was discussed in much more appropriate, nuanced terms. 

I have no doubt that Mr. Reed wanted to enter a plea to lesser charges than 

those to which Mr. Dixon had pled. He understandably thought he would receive a 

sentence of less incarceration than Mr. Dixon. For the reasons I articulated both at 

his sentencing and in my 2020 opinion, I was of a different opinion. I sentenced Mr. 

Reed to essentially the same punishment as Mr. Dixon. In my view, Mr. Reed then 

made the claim that Trial Counsel told him that “no Black man can ever get a fair 

trial in Sussex County” to create a way out of the sentence I had imposed.

As discussed above, in its 2021 opinion the Delaware Supreme Court held that a 

lawyer who gives such advice violates the performance prong of Strickland. I agree 

with that proposition. However, the advice which Mr. Reed alleges he was given is 

the most egregious possible articulation of the issue of race in legal matters. 

144 Savage v. State, 2003 WL 214963, at *2 (Del. Jan. 31, 2003); Somerville v. State, 703 A.2d 

629, 632 (Del. 1997).
30

Anecdotal stories also support the belief that racial bias should be considered 

and discussed. Toni Morrison wrote elegant and awful fiction about the horrors of 

slavery in her Pulitzer Prize winning book, Beloved. While the story is fiction, it is 

historically accurate. I find it unsurprising that a racial group which was subjected 

to the horrors of slavery, and all that followed, would harbor a bit of distrust of the 

institutions which allowed the horror to continue for so long. In short, competent 

counsel should discuss the issue of race with the client. For me, one can staunchly 

defend our criminal justice system while still recognizing racial bias issues. Voir dire

may help in addressing implicit racism in the jury pool, but it does not eliminate it. 

We all want a race neutral system, but we do not have to pretend that one exists 

today.

Because I do not believe that Trial Counsel told Mr. Reed that “no Black man 

can ever get a fair trial in Sussex County,” but rather provided a more nuanced 

discussion of the factor of race in criminal trials, I find that Mr. Reed has not 

demonstrated that the performance prong of Strickland has been met. 

This being the case, it is unnecessary to address the prejudice prong of 

Strickland.

145

 However, I will briefly do so. In its 2021 decision, the Delaware 

145 I agree with the Delaware Supreme Court and the State that, if Trial Counsel had told Dixon 

that “no Black man can ever get a fair trial in Sussex County,” not only would the performance 

prong have been met, but the prejudice prong of Strickland would have been met as well, and Trial 

Counsel’s representation would have been ineffective.
31

Supreme Court stated that, if Trial Counsel advised Mr. Reed that he would not 

receive a fair trial because of his race, “there is a reasonable probability that had 

counsel not made such an error, Reed would not have entered a plea and the second 

Strickland prong would be satisfied.”146 As discussed above, in my view Trial 

Counsel did not give such absolute advice. Thus, the second prong of Strickland is 

not satisfied per se under the Delaware Supreme Court’s decision remanding this 

case. However, I will examine whether Trial Counsel’s advice, assuming arguendo

that it was deficient, resulted in prejudice to Mr. Reed by inducing his guilty plea.

Prejudice Prong

I find that Trial Counsel’s advice regarding race and jury selection did not 

result in prejudice to Mr. Reed because it did not cause him to plead guilty when he 

otherwise would not have done so. Mr. Reed claims that what led him “to change 

his position from not taking to taking the plea was that crucial meeting on the 

morning of trial.”147 But the allegedly deficient advice about race and the makeup 

of the jury did not occur that morning. Mr. Phillips was 99% sure it did not happen, 

and Ms. Murray did not recall it.

Rather, events immediately preceding the trial date, and not the race and jury 

advice given weeks earlier, caused Mr. Reed to accept the State’s plea offer. Those 

146 Reed, 258 A.3d at 826.

147 Opening Br. 18.
32

precipitating events were Mr. Reed’s conversations with his family and his 

girlfriend, the mother of his child. Their concern was minimizing Mr. Reed’s 

sentence. During the week between Final Case Review and trial, Mr. Phillips and 

Ms. Murray had conversations with Mr. Reed’s family and girlfriend, who wanted 

Mr. Reed to take the plea.148 Mr. Phillips told the State that Mr. Reed’s sister and 

brother “were going to see him this weekend” and “think he should have taken [the 

plea].”149 At the prison on January 12, Ms. Murray and Mr. Reed talked about Mr. 

Reed’s girlfriend giving birth and whether he would be able to see his child outside 

of prison.150 Mr. Reed told Ms. Murray that he wanted to discuss it more with his 

girlfriend, giving Ms. Murray the impression that he was leaning toward taking the 

offer.151 The next morning, Mr. Reed was still nervously weighing whether to accept 

the plea offer.152 Trial Counsel assured Mr. Reed that they were ready for trial.153 

Nevertheless, they discussed Reed’s sentence exposure in light of the possible 

choices and outcomes.154 The ultimate sentence was always one of Mr. Reed’s chief 

concerns.155 Ms. Murray advised Mr. Reed that sometimes taking a plea is about 

148 A369–70, A404–05.

149 A451.

150 A405, A421.

151 A421–22.

152 A409.

153 A409.

154 A371, A422–23.

155 A364–65, A423.
33

damage control and that Manslaughter had less sentence exposure than Murder.156 

Mr. Reed decided to accept the State’s plea offer, Ms. Murray believed, because of 

Mr. Reed’s conversations with his girlfriend.157

Mr. Reed denies that his family persuaded him to accept the State’s plea 

offer.

158

 He claims that he never agreed to accept the State’s plea offer until he 

received Trial Counsel’s advice on the morning of trial.159 Similarly, Mr. Reed 

claims that he did not intend to accept the State’s plea offer on January 3, 2020 when 

he signed a plea agreement and completed the TIS Form.160 He says that Trial 

Counsel advised him to sign the paperwork “just in case you change your mind.”161 

But Mr. Phillips testified: “I don’t know that we would have signed it just in case. I 

think that we signed it to take the plea.”162 Mr. Phillips acted accordingly: he 

emailed the signed plea agreement and TIS Form to the State,163 and he called to 

schedule a plea-by-appointment hearing for Monday rather than wait until 

Wednesday’s Final Case Review.164 If Mr. Reed was leaning toward rejecting the 

156 A423.

157 A410–11.

158 See A313.

159 A280–87.

160 A283–84.

161 A283.

162 A338.

163 A340.

164 See A340–41.
34

offer or needed more time to consider it, there would have been no reason to schedule 

an earlier hearing. The plea offer did not have an expiration date.165

The record developed on remand at the evidentiary hearing demonstrates that 

Mr. Reed struggled with pleading guilty, repeatedly changed his mind, and 

ultimately entered the plea after consulting with his family and girlfriend. He sought 

to withdraw his plea because, consistent with his history of uncertainty, he changed 

his mind yet again about whether admitting guilt would secure a lesser sentence.

In my view, in addition to not proving the performance prong of Strickland

with respect to the Advice Claim, I find that Mr. Reed has not proved the prejudice 

prong of Strickland with respect to the Advice Claim. Thus, I find that Mr. Reed

has not proven his Advice Claim, the advice given by Trial Counsel did not adversely 

affect the voluntariness of Mr. Reed’s guilty plea, and the guilty plea stands. 

VI. WITHDRAWAL CLAIM

Performance Prong

As discussed above, the Delaware Supreme Court in its 2021 decision held 

that, since Mr. Reed asked Trial Counsel to file a motion to withdraw his guilty plea 

before sentencing and did not rescind that request, and since Trial Counsel failed to 

file the motion or clear the way for Mr. Reed to file it himself, such failure 

165 A469.
35

constituted deficient performance under Strickland. The remaining question is 

whether this failure also satisfies the prejudice prong of Strickland.

Prejudice Prong

To satisfy Strickland’s prejudice prong, Mr. Reed “must show there is a 

reasonable probability that, but for counsel's unprofessional errors, the result of the 

proceeding would have been different.”166 A reasonable probability is a “probability 

sufficient to undermine confidence in the outcome,” a standard lower than “more 

likely than not.”167 “The likelihood of a different result must be substantial, not just 

conceivable.”168 Thus, in the plea withdrawal context, Mr. Reed must show that there 

is some reasonable probability that, but for Trial Counsel's error, Mr. Reed would 

have insisted on going to trial and the trial court would have granted his motion to 

withdraw the plea.

Under the Superior Court Criminal Rules, the Superior Court “may permit 

withdrawal of the plea upon a showing by the defendant of any fair and just 

reason.”169 The decision whether to grant the motion “rests in the sound discretion 

of the trial court, and is reviewable only for abuse of discretion.”170 My discretion 

in considering a plea withdrawal motion must give due weight to the proceedings by 

166 Starling v. State, 130 A.3d 316, 325 (Del. 2015) (quoting Strickland, 466 U.S. at 694). 

167 Id.

168 Id. (quoting Harrington v. Richter, 562 U.S. 86, 112 (2011)).

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

170 State v. Insley, 141 A.2d 619, 622 (Del. 1958).
36

which the plea was taken and the presumptively truthful statements the defendant 

made in the colloquy.171 The Delaware Supreme Court has observed that:

Where the defendant has signed his Truth-in-Sentencing Guilty Plea 

Forms and has answered at the plea colloquy that he understands the 

effects of the plea, the defendant must show by clear and convincing 

evidence that he did not sign those forms knowingly and voluntarily.172

(Emphasis Supplied)

The Delaware Supreme Court has identified five factors that must be specifically 

examined by the trial court in reaching its decision. These five factors are: (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 

throughout the proceedings; and (5) does granting the motion prejudice the State or 

unduly inconvenience the Court.

173 Though inquiry into each is mandatory, the 

Scarborough factors need not be weighed equally, and in the proper case the trial 

court may in its discretion find that “some of these factors of themselves may justify 

relief.”174

171 Scarborough, 938 A.2d at 649.

172 Id. at 650.

173 Id.

174 Id. (“[t]hese factors are not factors to be balanced; indeed, some of the factors in and of 

themselves may justify relief.”).
37

In its 2021 opinion, the Delaware Supreme Court noted that the effect of the 

Strickland prejudice prong on the Delaware plea withdrawal standard was an issue 

of first impression in Delaware. The Strickland prejudice prong requires only a 

showing of a “reasonable probability” that a motion to withdraw the plea would be 

granted (a lower standard), whereas Rule 32(d) requires a showing of a “fair and 

just” reason to withdraw a guilty plea (a higher standard). This raises the question of 

whether the higher or lower standard applies in the Delaware plea withdrawal 

context.175 However, the Delaware Supreme Court did not have to decide this issue, 

because its inquiry was limited to whether Mr. Reed was entitled to an evidentiary 

hearing to develop facts that would address his Rule 61 claims. 

In a case after its 2021 Reed decision, the Delaware Supreme Court again 

considered a defendant’s claim that his counsel was ineffective for failing to file a 

motion to withdraw his guilty plea as he instructed. Citing Reed, the Court, as in 

Reed, assumed that defendant had satisfied the first prong of Strickland. The Court 

went on to state:

To satisfy the second prong of Strickland in the plea withdrawal 

context, [the defendant] must show a reasonable probability that, but 

for his counsel's error, he would have insisted on going to trial and the 

175 The Delaware Supreme Court considered several federal circuit court decisions considering 

habeas corpus petitions based upon state convictions alleging an unreasonable failure to move to 

withdraw a plea. Those decision held that the defendant need only show that there is “reasonable 

probability” that the motion would have been granted to satisfy Strickland. But the relief granted 

in those cases contemplated the defendant being permitted to litigate the underlying plea 

withdrawal standard, not an order vacating the plea. The Delaware Supreme Court found those 

federal cases persuasive as to the “reasonable probability” (lower) standard. 
38

trial court would have granted his motion to withdraw plea. Under Rule 

32(d), [the defendant] bears the burden of showing a fair and just reason 

to permit withdrawal of his plea. The relevant factors to consider are 

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 counsel; 

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

inconvenience the court.176

Thus, I will decide whether, based upon the evidence at the evidentiary hearing, Mr. 

Reed has demonstrated a “reasonable probability” that, but for Trial Counsel’s error, 

he would have insisted on going to trial. Then I will decide whether I would have 

granted his motion to withdraw his guilty plea, based on a “fair and just” reason 

applying the five Scarborough factors.

I find that Trial Counsel conducted research to adequately consider the 

Scarborough factors when they decided to override Mr. Reed's instructions 

regarding the plea withdrawal motion. However, I find that Mr. Reed never 

rescinded his instructions to Trial Counsel to withdraw his guilty plea prior to 

sentencing, but Trial Counsel failed to do so, or clear the way for Mr. Reed to do so. 

This violates the holding of the 2021 Reed holding. Thus, Mr. Reed has 

demonstrated a reasonable probability that, but for Trial Counsel’s error, he would 

have filed a motion to withdraw his guilty plea before sentencing and insisted on 

going to trial. 

176 Morrison v. State, 2022 WL 790507 at *5 (Del. Supr. March 16, 2022). (Footnotes and Citations

Omitted)
39

I must still decide whether I would have granted his motion to withdraw his 

guilty plea before sentencing, based on a “fair and just” reason applying the five 

Scarborough factors. I find that I would not have granted his motion to withdraw 

his guilty plea, for the reasons discussed below.

No Procedural Defect in Taking the Plea

All parties agree that my colloquy with Mr. Reed was in full compliance with 

legal and procedural requirements. The Delaware Supreme Court stated:

Just such a procedurally proper plea colloquy occurred here. The 

Superior Court rules identify what rights the trial court must advise the 

defendant of prior to accepting the plea to ensure the plea is informed, 

and what inquiries the trial court must make to ensure the agreement is 

voluntary. The trial judge engaged in a plea colloquy with the defendant 

directly, confirming that Reed understood the meaning and import of 

the plea agreement's terms, and what procedural and substantive rights 

he was surrendering.

It is undisputed that the trial judge conducted a conforming colloquy in 

this case, as Reed agrees that “the plea procedure was free from defect 

and the consent to the plea was knowing, intelligent, and voluntary.”177 

Mr. Reed Voluntarily Entered the Plea

When I conducted the colloquy with Mr. Reed, I found that his decision 

to plead guilty to Manslaughter and no contest to PFDCF was knowing, intelligent, 

and voluntary.178 Mr. Reed had completed a TIS Form that advised him of the rights 

177 Reed, 258 A.3d at 823. (Footnotes Omitted)

178 A84.
40

he was giving up by pleading guilty, and I recounted them during the colloquy.179 

Mr. Reed indicated on the TIS Form that no one had promised him what his sentence 

would be.180 He stated both on the TIS Form and during the colloquy that no one 

had forced him to enter the pleas.181 Absent clear and convincing evidence to the 

contrary, Mr. Reed’s answers on the TIS Form and during the plea colloquy are 

presumed to be truthful.182

In his Amended Rule 61 Motion, Mr. Reed claims that his decision was 

neither knowing nor voluntary for three reasons.

183

 

First, Reed claims that Trial Counsel coerced him into pleading guilty by 

improperly advising that he would receive an unfair trial in Sussex County and be 

convicted because of his race.184 As discussed fully above, I reject this argument.

Second, Mr. Reed contends that Trial Counsel promised he would receive the 

minimum sentence if he accepted the State’s plea offer.185 As discussed fully above, 

I reject this argument. Ms. Murray’s notes indicate that she advised Mr. Reed that 

the penalty range was “7–50” years.186 The number “10” circled next to it indicates 

179 A81, A89.

180 A89.

181 A83–84, A89.

182 Savage, 2003 WL 214963, at *2; Somerville, 703 A.2d at 632.

183 Opening Br. 23–26; A261–62.

184 Opening Br. 23–24; A261.

185 Opening Br. 24–25.

186 A428.
41

a belief about what sentence Reed might get, consistent with Trial Counsel’s 

testimony. Mr. Phillips believed Mr. Reed would receive a 10- to 15-year sentence, 

but not the minimum.187 Even though Trial Counsel’s prediction proved to be 

inaccurate, an attorney’s “mere inaccurate prediction of a sentence” does not amount 

to deficient performance under Strickland,

188 and it does not support the conclusion 

that Mr. Reed’s plea was unknowing or involuntary. Despite Trial Counsel’s 

predictions, Mr. Reed knew the possible range of penalties and that the sentencing 

decision ultimately rested with me.

189

 He indicated on the TIS Form that no one 

promised him what his sentence would be,190 and he is bound by that prior 

statement.191 He admitted at the evidentiary hearing that Trial Counsel advised he 

could get “a lot more” than 12 years and that he knew the ultimate decision rested 

with me.

192

Third, Mr. Reed claims in his Amended Rule 61 Motion that Trial Counsel 

“provided deficient advice regarding the theory of criminal culpability upon which 

187 A377.

188 United States v. Martinez, 169 F.3d 1049, 1053 (7th Cir. 1999); accord Tocco v. Lewis, 

1990 WL 151269, at *3 (9th Cir. Oct. 10, 1990); see also Jones v. United States, 131 F. App’x 

819, 821 (3d Cir. 2005) (“[T]he questions asked and answers given at the Rule 11 colloquy . . . 

leave[] no doubt that . . . his counsel anticipated a sentence substantially shorter than [forty years] 

but had discussed a potential forty year sentence with him . . . Suffice it to say, there is no act of 

or omission by counsel that would warrant a finding of ineffective assistance.”).

189 See A78, A89.

190 A89.

191 Savage, 2003 WL 214963, at *2; Somerville, 703 A.2d at 632.

192 A295, A324–25.
42

Mr. Reed would be convicted.”193 This claim is based on statements that Mr. Reed 

and Trial Counsel made during the sentencing hearing,194 when Mr. Reed had 

already pled guilty to Manslaughter and PFDCF, and Trial Counsel were attempting 

to present his actions in the best possible light, given that plea. From these 

statements, Mr. Reed alleges that Trial Counsel provided deficient advice by telling 

him that “he could be found guilty of intentional murder because he encouraged a 

fistfight and the homicide was reasonably foreseeable” and that “he could be found 

guilty of PFDCF on a theory of constructive possession.”195 In their Second Trial 

Counsel Affidavit, Trial Counsel detail the theories of culpability they explained to 

Mr. Reed and distinguished them from their presentation at sentencing.196 Trial 

Counsel’s advice was reasonable, and the arguments in the Amended Rule 61 

Motion are inapposite.

197 Following the Second Trial Counsel Affidavit, Mr. Reed 

did not argue the issue at the evidentiary hearing or in his opening brief. I conclude 

that Trial Counsel’s reasonable legal advice did not affect the validity of Reed’s 

guilty pleas.

Mr. Reed Had No Basis to Assert Legal Innocence

193 A261.

194 See A261 (cross-referencing A252–58).

195 A257–58.

196 A271–72.

197 See A252–58.
43

In his Amended Rule 61 Motion, Mr. Reed asserts his legal innocence. First, 

he denies shooting Mr. Hatton.198 Second, he points out that the police recovered 

only a single 9mm projectile, but witnesses saw Mr. Reed with a revolver.199 

Projectiles are often not recovered, however, and the lack of shell casings would be 

consistent with the use of a revolver. In any event, the discovery of ballistics 

evidence was not required to convict Reed of the offenses.200 Third, the State’s 

witnesses would be subject to cross-examination.201 Fourth, the surveillance video 

showed that Mr. Reed was not involved in any disagreement with Mr. Hatton at the 

deli before the shooting.202 Mr. Reed argues that his proffered motive—shooting 

Mr. Hatton because Mr. Hatton owed him money—was less believable than the 

motives of the people involved in the disagreement at the deli.203

In my view, Mr. Reed’s claims lack the weight and credibility of the State’s 

evidence and do not amount to a legally cognizable defense. He also does not 

suggest that the State would be incapable of proving the charges as a matter of law. 

Indeed, the State identified four witnesses who would identify Mr. Reed as someone 

198 A262.

199 A262.

200 Cf. State v. Capobianco, 2014 WL 890946, at *2 (Del. Super. Ct. Mar. 5, 2014) (“Defendant 

argues that the following evidence demonstrates his legal innocence: there is no physical evidence 

of sexual contact with the victim . . . These claims do not support the relief sought by Defendant: 

physical evidence is not required to support the charges on which Defendant was indicted . . . .”)

201 A263.

202 A262–63.

203 A263.
44

who shot and killed Mr. Hatton.204 If the mere ability to challenge the weight of the 

State’s evidence constituted a basis to assert legal innocence, this factor would cease 

to be a meaningful inquiry into whether there is a fair and just reason to withdraw 

the plea. Only perfect and unimpeachable cases would survive a plea withdrawal 

motion, destroying the procedural certainty the rule is designed to defend.

In a recent opinion, the Delaware Supreme Court reviewed a defendant’s 

claim that his motion to withdraw a nolo contendere plea should have been granted 

by the Superior Court because of the second, third and fourth of the Scarborough

factors, where he asserted that he had a valid claim of legal innocence. The facts he 

presented on legal innocence were self-serving and conclusory. The Delaware 

Supreme Court held:

When considering an assertion of legal innocence, this Court has held 

that “conclusory allegations of innocence are not sufficient to require 

withdrawal of a guilty plea, especially where the defendant has 

admitted his guilt in the plea colloquy.”205 (Footnotes and Citations 

Omitted)

As discussed above, I find that Mr. Reed’s allegations of actual innocence are merely 

conclusory, especially given the fact that he admitted his guilt in the plea colloquy. 

Moreover, Trial Counsel investigated an alleged eleventh-hour change in a witness’ 

story and found there to be no merit to the allegation.

204 A133.

205 Savage v. State, 2003 WL 214963, at *2 (Del. Jan.31, 2003) (ORDER).
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Adequacy of Trial Counsel

As discussed above, in its 2021 Reed opinion the Delaware Supreme Court 

stated that, if Mr. Reed asked Trial Counsel to file a motion to withdraw his guilty 

plea before sentencing and did not rescind that request, and if Trial Counsel failed 

to file the motion or clear the way for Mr. Reed to file it himself, then Trial Counsel’s 

failure constitutes deficient performance under Strickland.

206 However, the 

Delaware Supreme Court acknowledged that its decisional law on this point had not 

been consistent.207 To remedy this problem, it now held for the first time:

[A] criminal defendant's control of the objectives 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 the motion with other counsel or pro se.

208

But the 2021 Reed decision also recognized that, as the United States Supreme Court 

held in Strickland, courts must “judge the reasonableness of counsel's challenged 

206 Reed, 258 A.3d at 829. (Footnotes Omitted) The State agreed. See Ans. Br. at 29–30 (“If Mr. 

Reed's allegation is true, then his counsel's refusal constitutes deficient performance. The decision 

whether or not to plead guilty is a fundamental decision that belongs to the defendant. The right 

encompasses the decision to pursue a plea-withdrawal motion. Thus, ‘a lawyer who disregards 

specific instructions [to file a plea withdrawal motion] acts unreasonably.’ ”) (Citation Omitted).

207 Defendants who have moved to withdraw their guilty plea in Superior Court are routinely 

appointed new counsel for that purpose, especially when the defendant raises claims of coercion 

or ineffective assistance of counsel. But the Delaware Supreme Court has also affirmed the 

Superior Court's refusal to appoint new counsel for a defendant seeking to withdraw a plea. See, 

e.g., Mills v. State, 2016 WL 97494 (Del. 2016); Windsor v. State, 2014 WL 4264915, at *3 (Del. 

2014) (affirming Superior Court's refusal to consider application to withdraw a plea because 

counsel did not file it on defendant's behalf and noting that defendant did not apply under Rule 47

to participate with counsel in portions of his defense); Trotter v. State, 2018 WL 6167322, at *1 

(Del. 2018) (the Superior Court did not err in denying defendant's pro se motion to withdraw his 

plea nor in refusing to appoint new counsel for him.).

208 Reed v. State at 828-829.
46

conduct on the facts of the particular case, viewed as of the time of counsel's 

conduct.”209

In this case, with respect to Mr. Reed’s direction to Trial Counsel to withdraw 

his plea prior to sentencing, they were acting in good faith prior to the new Reed

holding under existing, inconsistent law. As such, their performance was not 

deficient on the facts at that time. Nor did I find other incidents of deficient 

performance on the part of Trial Counsel.

Prejudice to the State or Undue Inconvenience to the Court

Mr. Reed identifies no prejudice to the State or undue convenience to the 

Court should I grant his plea withdrawal motion.210 Although the State has identified 

none so far, trials do not get better with time. Putting this case back on the path to 

trial risks problems with witness availability and memory. For me, although the 

importance of this factor is slight, it stills weighs against granting the motion to 

withdraw the guilty plea.

Even if Mr. Reed had made the motion to withdraw his guilty plea before 

sentencing under the Superior Court Criminal Rules, I would not have granted it. I 

do not grant it now. Therefore, there is no prejudice under the second prong of 

209 Id. at 831. 

210 A264.
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Strickland. I find that Mr. Reed has not proven his Withdrawal Claim and the guilty 

plea stands.

VII. CONCLUSION

 Any discussion of how race may affect decision-making in the criminal 

law process will always be fraught with difficulty and concern. Even considering 

that race may affect outcomes is troubling. But for me the answer is not to ignore 

the racial issue. The goal is race neutrality, but assuming that goal has been achieved 

ignores evidence to the contrary.

Without doubt, Trial Counsel were concerned with and raised the issue. Mr. 

Reed turned that into its lowest common denominator to bolster his effort to get to a 

trial he had given up by his plea. To me, Mr. Reed’s motive was twofold. He 

convinced himself he had a reasonable prospect of being found not guilty. He was 

disappointed and had damaged expectations by the sentence he received.

Taking the latter issue first, I sentenced Mr. Reed to virtually the same sentence 

as Mr. Dixon, who pled guilty to a more serious offense. While I was critical of the 

process the parties followed in reaching a plea agreement, I relied heavily upon the 

statements made by Mr. Dixon, the thorough pre-sentence investigation prepared by 

our Court officers. Although the information in the reports has not been tested by 

the trial process, it is reliable. The evidence that Mr. Reed was the predominant and 

motivating force behind the killing of Mr. Hatton was substantial.
48

Mr. Reed’s efforts throughout this process have showed buyer’s remorse 

supported by what I have found to be incredible attacks on Trial Counsel. I suspect 

Mr. Reed now has convinced himself that what he says his lawyers told him is true, 

but that does not make it so.

I heard both Mr. Dixon and Mr. Reed at their sentencing hearings, and reviewed 

what they said and everything else in the pre-sentencing reports. I have listened to 

what Mr. Reed told me in the Rule 61 evidentiary hearing as directed by our Supreme 

Court. I have followed the Supreme Court’s directives to the best of my ability. The 

result I have reached is that Mr. Reed had a fair process and made knowing and 

intelligent decisions. Trial Counsel spoke in words he understood. The evidence the 

State arrayed against him was substantial and convincing.

For the foregoing reasons, Defendant Jerry Reed’s Amended Motion for 

Postconviction Relief is DENIED.

IT IS SO ORDERED. 

/s/ Craig A. Karsnitz

Judge Craig A. Karsnitz

cc: Prothonotary