IN THE SUPREME COURT OF THE STATE OF DELAWARE 

JOSHUA SHORTS, § 

 § No. 268, 2017 

 Defendant-Below, § 

 Appellant, § Court Below: Superior Court 

§ of the State of Delaware 

v. § 

 § Cr. ID. No. 1603008492 (N) 

STATE OF DELAWARE, § 

 § 

Plaintiff-Below, § 

 Appellee. § 

 

Submitted: May 16, 2018 

Decided: May 30, 2018 

Before STRINE, Chief Justice; VALIHURA, and SEITZ, Justices. 

ORDER 

 This 30th day of May, 2018, having considered the briefs and the record below, 

it appears to the Court that: 

(1) Police arrested Joshua Shorts and Michael Diehl after witnessing a drug 

transaction in a vehicle outside Red Robin. Their cell phones contained text 

messages revealing that Shorts planned to sell heroin to Diehl, who would in turn 

sell it to another buyer. Diehl confessed to buying the heroin from Shorts to sell. 

Shorts was charged with possession with intent to deliver four grams or more of 

heroin, possession of five grams or more of heroin, second degree conspiracy, and 

possession of codeine. On November 29, 2016, he pled guilty to possession with 
2 

intent to deliver four grams or more of heroin and second degree conspiracy. The 

truth-in-sentencing plea form stated that the sentencing range for the drug offense 

was two to twenty-five years.1

 However, Shorts qualified as an habitual offender, 

and thus the actual maximum was a discretionary life sentence. 

(2) At the plea colloquy, the trial judge confirmed that Shorts reviewed the 

plea agreement and the truth-in-sentencing plea form with his attorney and went over 

any questions, issues, or concerns. Shorts stated that he understood what rights he 

was waiving and that no one “forced or threatened” him to plead guilty or promised 

him what his sentence would be. The court found there was a factual basis for the 

plea and accepted it as knowing, intelligent, and voluntary.2

 At the colloquy, 

however, the court did not state on the record the mandatory minimum penalty 

provided by law and the maximum possible penalty provided by law.3

(3) On January 25, 2017, before sentencing, the State filed a motion to 

declare Shorts an habitual offender. Shorts then moved to withdraw his guilty plea.4

 

In his motion, Shorts argued that there was a procedural defect in the plea because 

the maximum sentence on the form was incorrect, and that his attorney pressured 

 

1

 App. to Opening Br. at 28 (Truth-in-Sentencing Guilty Plea Form, State v. Shorts, No. 

1603008492 (Del. Super. Nov. 29, 2016)). 

2 Id. at 21–24 (Tr. Plea Colloquy, Shorts, No. 1603008492, at 5–8 (Del. Super. Nov. 29, 2016)). 

3 See Super. Ct. Crim. R. 11(c)(1). 

4

 Shorts filed his motion pro se before being appointed counsel. On February 13, 2017, his counsel 

refiled the motion; afterwards, his counsel changed, and on March 23, 2017, his new counsel filed 

a new motion to withdraw the guilty plea. 
3 

him into taking the plea.5 The State withdrew its habitual offender petition on June 

23, 2017 because Shorts “was not fully aware of the life sentence,” and the form did 

“not specifically list the correct amount of years.”6

 Shorts argued that withdrawing 

the petition did not cure the procedural defect because “advising somebody of the 

wrong penalties at the time of . . . the plea, not at the time of sentencing, is what we 

look at”—and the sentences at the time of the plea were incorrect.7

 The court 

disagreed and held that the State’s withdrawal of its petition cured the procedural 

defect,8

 and that his plea was knowing and voluntary because Shorts stated at the 

colloquy that no one forced him to take it.9

 The Superior Court denied Shorts’ 

motion to withdraw and sentenced him to twenty-seven years suspended after thirty 

months, followed by decreasing levels of supervision. Shorts appealed. 

(4) On appeal, Shorts argues that the Superior Court abused its discretion 

in denying his motion to withdraw his guilty plea. First, he asserts that there was a 

“formal defect in taking the plea” because he was told the maximum sentence was 

twenty-five years, when it was actually a discretionary life sentence.10 Second, 

 

5

 App. to Opening Br. at 35 (Mot. to Withdraw Guilty Plea, Shorts, No. 1603008492 (Del. Super. 

Mar. 22, 2017)). 

6 Id. at 99–100 (Tr. Mot. to Withdraw Guilty Plea, Shorts, No. 1603008492, at 46–47 (Del. Super. 

June 23, 2017)).

7 Id. at 70 (Tr. Mot. to Withdraw Guilty Plea, at 17). 

8 Id. at 108 (Tr. Mot. to Withdraw Guilty Plea, at 55). 

9 Id. at 109–10 (Tr. Mot. to Withdraw Guilty Plea, at 56–57). 

10 Opening Br. at 5. 
4 

Shorts argues his plea was not knowing and voluntary because he was “unduly 

pressured to plead guilty” by his counsel.11 This Court reviews the denial of a motion 

to withdraw a guilty plea for an abuse of discretion.12

(5) A court may permit withdrawal of a guilty plea “upon a showing by the 

defendant of any fair and just reason.”13 To determine if the defendant has 

established a fair and just reason, courts consider whether: (1) there was a procedural 

defect in taking the plea; (2) the defendant knowingly and voluntarily consented to 

the plea agreement; (3) the defendant has a basis to assert legal innocence; (4) the 

defendant had adequate legal counsel throughout the proceedings; and (5) granting 

the motion prejudices the State or unduly inconveniences the court.14 “These factors 

are not factors to be balanced; indeed, some of the factors of themselves may justify 

relief.”15 When a motion to withdraw a guilty plea is made prior to sentencing, there 

is “a lower threshold of cause sufficient to permit withdrawal.”16 

(6) Shorts argues for the first time on appeal that the court abused its 

discretion because it did not address him “personally in open court” to inform him 

 

11 Id.

12 Blackwell v. State, 736 A.2d 971, 972 (Del. 1999); see id. (“A motion to withdraw a guilty plea 

is addressed to the sound discretion of the trial court.”). 

13 Super. Ct. Crim. R. 32. 

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

15 Id. As to the final three factors, the court found that Shorts’ counsel was not ineffective, that 

Shorts did not have a legal basis for innocence, and noted that granting the motion would cause 

little prejudice to the State. 

16 McNeill v. State, 810 A.2d 350, 2002 WL 31477132, at *1 (Del. Nov. 4, 2002) (TABLE). 
5 

and determine that he understood “the mandatory minimum penalty provided by law, 

if any, and the maximum possible penalty provided by law,” as prescribed by 

Superior Court Criminal Rule 11(c).17 The State concedes that the court did not state 

the sentencing range on the record, but argues that “the court’s failure to do so is not 

fatal.”18 Under Rule 11, the court must confirm that the defendant understands the 

consequences of his guilty plea and must state the minimum and maximum sentences 

on the record.19 This is in part because “[t]he maximum possible sentence is the 

most important consequence of a guilty plea.”20 However, “not all technical defects 

in accepting a guilty plea justify withdrawal of the plea after sentencing.”21 When a 

“plea colloquy [does] not conform to the technical requirements” of Rule 11, “the 

Superior Court may permit a defendant to withdraw his guilty plea after sentencing 

only to correct manifest injustice.”22 

 

17 Super. Ct. Crim. R. 11(c). Because Shorts raises this argument for the first time appeal, we 

review for plain error. Wainwright v. State, 504 A.2d 1096, 1100 (Del. 1986) (“Under the plain 

error standard of review, the error complained of must be so clearly prejudicial to substantial rights 

as to jeopardize the fairness and integrity of the trial process.”). 

18 Answering Br. at 7. 

19 Super. Ct. Crim. R. 11(c). 

20 Allen v. State, 509 A.2d 87, 88–89 (Del. 1986) (citing Wells v. State, 396 A.2d 161, 162 (Del. 

1978)). 

21 Id. at 89. 

22 Id. at 88; see also State v. Webster, 1992 WL 91142, at *3 (Del. Super. Apr. 30, 1992), aff’d, 628 

A.2d 85 (Del. 1993) (“The pertinent inquiry at this point with regard to those deficiencies is 

whether Movant has shown prejudice rising to the level of manifest injustice.”). 
6 

(7) In State v. Webster, the defendant moved to withdraw his guilty plea 

when the trial court failed to state the maximum possible sentences on the record.23 

The Superior Court explained that the defendant must show that the court’s omission 

“influenced his decision to plead guilty” to establish manifest injustice and have his 

plea withdrawn.24 The court found there was no manifest injustice because the 

sentences were accurately stated on the plea form the defendant reviewed and 

signed. Thus, the defendant was aware of the maximum sentences, and he could not 

show that the court’s omission influenced his decision to plead guilty. Similarly, in 

the instant case, the trial court did not state the maximum penalties on the record, 

but the sentences were stated on the guilty plea form that Shorts signed. Thus, the 

court’s error in not stating the maximum penalty did not influence Shorts’ decision 

to plead guilty, and Shorts cannot establish manifest injustice.25 

(8) Shorts argues that he suffered manifest injustice because the plea form 

stated that the maximum penalty for the drug offense was twenty-five years, when 

 

23 Webster, 1992 WL 91142. 

24 Id. at *4; see also Allen, 509 A.2d at 88 (denying motion to withdraw guilty plea even though 

the court stated the maximum sentence was thirty years when it was actually fifteen); cf. Wells, 

396 A.2d at 162 (granting defendants’ motions to withdraw their guilty pleas when the trial judge 

entirely failed to inform them of the possible maximum sentences). 

25 Shorts also argues that had the court stated the maximum sentence at the guilty plea hearing, the 

error would have been caught and remedied, and he would have revoked his plea. Reply Br. at 2–

3. We find this argument unavailing. The State had not yet moved to declare Shorts an habitual 

offender, and thus the court had no reason to find the plea form incorrect. And as explained, any 

error on the part of the State in failing to identify and remedy the sentencing range was cured by 

its withdrawal of the petition to declare Shorts an habitual offender. 
7 

he could have faced a life sentence. The Superior Court found that while the 

inaccuracy was a procedural defect, it was cured by the State’s withdrawal of its 

petition to declare Shorts an habitual offender.26 The State explained that in the end, 

the sentencing range was “two to twenty-seven years, exactly as it [was] set forth” 

on the plea form. We agree. Shorts repeats in his briefing that the State’s withdrawal 

did not cure the defect, but he fails to state why.27 Shorts pled guilty when he 

believed he was facing a maximum penalty of twenty-five years for the drug 

offense—and this is the maximum he was ultimately sentenced under. The State’s 

motion to declare him an habitual offender and its subsequent withdrawal did not 

change the sentence under which he pled. 

(9) In Smith v. State, the defendant’s plea form stated that the maximum 

sentence was twenty years, when it was actually twenty-five.28 The court sentenced 

the defendant to twenty-five years. On remand, however, the court resentenced the 

defendant to twenty years to match the maximum on the guilty plea form. This Court 

held that resentencing the defendant to comport with the plea form “corrected any 

alleged error.”29 Similarly, while the maximum sentence on Shorts’ plea form stated 

twenty-five years when the actual maximum was a life sentence, the State’s 

 

26 App. to Opening Br. at 110 (Tr. Mot. to Withdraw Guilty Plea, at 57). 

27 Opening Br. at 6–7. 

28 89 A.3d 478, 2014 WL 1017277, at *3 (Del. Mar. 13, 2014) (TABLE). 

29 Id.
8 

withdrawal of its petition changed the maximum sentence to match the plea form, 

thus correcting any error. 

(10) Shorts’ second argument is that his plea was not knowing and voluntary 

because his counsel pressured him into taking the plea by telling him “that he would 

be sentenced to twenty-five years imprisonment if he did not plead guilty pursuant 

to the plea agreement.”30 The Superior Court found that this argument boiled down 

to a question of credibility: whether Shorts was telling the truth at the colloquy—

where he stated that no one forced him to take the plea and that he was satisfied with 

his representation—or at the motion to withdraw hearing—where he stated that his 

counsel pressured him to take the plea.31 The court concluded that Short’s testimony 

at the motion to withdraw hearing was not credible and that his testimony at the plea 

colloquy established that the plea was knowing and voluntary.32 The court 

explained, “He came into the courtroom and talked to me directly about wanting to 

plead guilty, and he said, Yes, I want to plead guilty to this charge.”33

(11) On appeal, Shorts argues that the court abused its discretion by 

concluding that his testimony was not credible because it failed to look at “the actual 

context in which the plea was taken.”34 He explains that “the plea was obviously 

 

30 Opening Br. at 5. 

31 App. to Opening Br. at 105–06 (Tr. Mot. to Withdraw Guilty Plea, at 52–53). 

32 Id. at 108–09 (Tr. Mot. to Withdraw Guilty Plea, at 55–57). 

33 Id. at 106 (Tr. Mot. to Withdraw Guilty Plea, at 53). 

34 Opening Br. at 7. 
9 

represented to [him] as very advantageous;” however, he was not informed that the 

State could only have convicted him of one of the drug offenses because the two 

charges were based on the same batch of heroin.35 Thus, he argues, his “advantage 

as a consequence of pleading guilty was largely illusory,” which shows his plea was 

not knowing and voluntary.36 In addition, he explains, the court did not confirm on 

the record that Shorts understood the “nature of the charge[s]” he was facing.37

(12) A plea is knowing and voluntary when it is “voluntarily offered by the 

defendant, himself, with a complete understanding by him of the nature of the charge 

and the consequences of his plea, and that the trial judge has so determined.”38 To 

be voluntary, the court must ensure that the plea “did not result from force, threats, 

or promises.”39 A defendant “is bound by the answers he provide[s] on his [truthin-sentencing] guilty plea form,”40 and his “statements to the Superior Court during 

the guilty plea colloquy are presumed to be truthful.”41 When reviewing the 

 

35 Id. at 7–8 (citing Brown v. State, 89 A.3d 476, 2014 WL 1258298, at *4 (Del. Mar. 25, 2014) 

(TABLE)). 

36 Id. at 7. Shorts also argues that he could not have been convicted of conspiracy because under 

Wharton’s rule, a party cannot be convicted of conspiracy if the person he is alleged to have 

conspired with “is necessarily involved with the person in the commission of the offense.” 11 Del. 

C. § 521. However, Shorts pled guilty to second degree conspiracy with the intent to sell heroin, 

and “Wharton’s Rule does not apply to an offense involving possession with intent to deliver.” 

Johnson v. State, 587 A.2d 444, 453 (Del. 1991). 

37 Super. Ct. Crim. R. 11(c)(1). 

38 Brown v. State, 250 A.2d 503, 504 (Del. 1969); see also Wells, 396 A.2d at 163. 

39 Super. Ct. Crim. R. 11. 

40 Dickson v. State, 991 A.2d 17, 2010 WL 537731, at *2 (Del. Feb. 16, 2010) (TABLE). 

41 Somerville v. State, 703 A.2d 629, 632 (Del. 1997). 
10 

testimony of the defendant or witnesses, “the trier of fact is the sole judge of 

credibility,” and we will not disturb its factual findings when “supported by 

competent evidence.”42

(13) In Teel v. State, the defendant argued that he should have been allowed 

to withdraw his guilty plea because he was coerced into pleading guilty, unable to 

read, under the influence of drugs, and confused about the minimum and maximum 

sentences.43 This Court rejected the defendant’s claim, because at his colloquy, the 

defendant stated that he was not under the influence of drugs, was not threatened or 

promised anything to induce him to plead guilty, and understood the minimum and 

maximum sentences.44 The court concluded that “the plea colloquy clearly reflects 

that [the defendant’s] plea was voluntary,” and thus there were no grounds to support 

its withdrawal.45 Similarly, Shorts now claims he was coerced into taking the plea 

and did not understand the nature of the charges. However, Shorts testified at the 

colloquy that he went over the plea agreement, that no one forced him to plead guilty, 

and that he was satisfied with his counsel’s response to any questions, issues, and 

concerns: 

Q. Did you have an opportunity to go over the plea 

agreement with [counsel]? 

A. Yes. 

 

42 Moore v. State, 540 A.2d 1088, 1988 WL 35155, at *3 (Del. Apr. 18, 1988) (TABLE). 

43 959 A.2d 28, 2008 WL 4483731, at *2 (Del. Oct. 7, 2008) (TABLE). 

44 Id. at *1. 

45 Id.
11 

Q. If you had any questions, issues, or concerns as you 

went over this plea agreement with [counsel], was he 

able to respond to them to your satisfaction? 

A. Yes. 

. . . 

Q. Has anybody forced or threatened you to plead guilty 

today? 

A. No. 

Q. Has anybody promised you what the sentence will 

be? 

A. No.46

Similar to Teel, Shorts’ colloquy reflects that his plea was voluntary. He cannot 

point to anything in the transcript to rebut the presumption that his statements were 

truthful, and “[a]bsent clear and convincing evidence to the contrary, [the defendant] 

is bound by his sworn answers in open court.”47 

(14) In another similar case, Brown v. State, the defendant moved to 

withdraw his guilty plea, arguing that he did not understand the nature of the charges 

against him.48 The court rejected this argument, finding that the defendant conferred 

with his counsel for thirty minutes prior to accepting the plea, and the judge 

confirmed on the record that the defendant discussed the matter fully with his 

counsel. Thus, the court determined it was “quite apparent that [the defendant] knew 

 

46 App. to Opening Br. at 21–22 (Tr. Plea Colloquy, at 5–6). 

47 Benson v. State, 933 A.2d 1249, 2007 WL 2523180, at *2 (Del. 2007) (TABLE); see id. 

(rejecting the defendant’s motion to withdraw guilty plea because “the transcript of the guilty plea 

colloquy clearly reflects [the defendant’s] understanding that . . . no one had promised what 

sentence he would receive”). 

48 250 A.2d at 504. 
12 

what he was doing.”49 Like the defendant in Brown, Shorts argues that his counsel 

failed to adequately inform him about the nature of his charges, and that the court 

failed to confirm that he understood them. However, just as in Brown, the trial court 

confirmed that Shorts went over the agreement with his counsel and that any issues, 

questions, and concerns were satisfactorily addressed. Therefore, Shorts “knew 

what he was doing,” and the court did not abuse its discretion in finding that his plea 

was knowing and voluntary. The Superior Court did not abuse its discretion in 

denying Shorts’ motion to withdraw his guilty plea. 

 NOW, THEREFORE, it is hereby ORDERED that the judgment of the 

Superior Court is AFFIRMED. 

 BY THE COURT: 

 

/s/ Collins J. Seitz, Jr. 

 Justice 

 

49 Id.