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 30 th day of May, 2018, having considered the briefs and the record below, it appears to the Court that: (1) Police arrested Joshua Shorts and Mi chael Diehl after witnessing a drug transaction in a vehicle outside Red R obin. 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 inte nt 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 with2 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 pl ea 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 thr eatened” him to plead guilty or promised him what his sentence would be. The cour t 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, be fore sentencing, the State filed a motion to declare Shorts an habitual offender. Shor ts then moved to withdraw his guilty plea. 4 In his motion, Shorts argued that there wa s a procedural defect in the plea because the maximum sentence on the fo rm 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 ha bitual offender petition on June 23, 2017 because Shorts “was not fully awar e 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 withdr awal of its petition cured the procedural defect, 8 and that his plea was knowing and volun tary because Shorts stated at the colloquy that no one forced him to take it. 9 The Superior Court denied Shorts’ motion to withdraw and senten ced him to twenty-seven y ears suspended after thirty months, followed by decreasing levels of supervision. Shorts appealed. (4) On appeal, Shorts argues that the S uperior Court abused its discretion in denying his motion to withdraw his guilty pl ea. 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 actua lly 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 c onsider whether: (1) there was a procedural defect in taking the plea; (2) the defenda nt knowingly and voluntarily consented to the plea agreement; (3) the defendant has a basis to assert legal innocence; (4) the defendant had adequate lega l 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 pl ea 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 “p ersonally in open cour t” 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 disc retion 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 granti ng 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 unders tood “the mandatory minimu m penalty provided by law, if any, and the maximum possible pena lty 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 th at “the court’s failure to do so is not fatal.” 18 Under Rule 11, the court must conf irm that the defendant understands the consequences of his guilty plea and must state the minimum a nd 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 withdr awal of the plea after sentencing.” 21 When a “plea colloquy [does] not conform to th e 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 rais es 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 mu st 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 defe ndant 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 th e 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 hi s 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 pe nalty did not influence Shorts’ decision to plead guilty, and Shorts cannot establish manifest injustice. 25 (8) Shorts argues that he suffered mani fest 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 w ithdraw their guilty plea s 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 ha d not yet moved to declare Shorts an habitual offender, and thus the court had no reason to find the plea form in correct. And as explained, any error on the part of the State in failing to iden tify and remedy the sentencing range was cured by its withdrawal of the petition to d eclare Shorts an habitual offender.7 he could have faced a life sentence. Th e 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-sev en years, exactly as it [was] set forth” on the plea form. We agree. Shorts repeats in his briefi ng 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 ma ximum penalty of twenty-five years for the drug offense—and this is the ma ximum he was ultimately sent enced under. The State’s motion to declare him an habitual offende r and its subsequent withdrawal did not change the sentence unde r which he pled. (9) In Smith v. State , the defendant’s plea form stated that the maximum sentence was twenty years, wh en 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 gu ilty plea form. This Court held that resentencing the defendant to co mport with the plea form “corrected any alleged error.” 29 Similarly, while the maximum se ntence on Shorts’ plea form stated twenty-five years when the actual ma ximum 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 (D el. Mar. 13, 2014) (TABLE). 29 Id.8 withdrawal of its petition changed the ma ximum 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 ta king the plea by telling him “that he would be sentenced to twenty-five years imprison ment if he did not plead guilty pursuant to the plea agreement.” 30 The Superior Court found th at this argument boiled down to a question of credibility: whether Shor ts was telling the truth at the colloquy— where he stated that no one forced him to ta ke 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 cr edible and that his testimony at the plea colloquy established that the plea was knowing and voluntary. 32 The court explained, “He came into th e courtroom and talked to me directly about wanting to plead guilty, and he said, Yes, I wa nt 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 th e 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 la rgely 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 “n ature 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 co mplete understanding by him of the nature of the charge and the consequences of his plea, and th at the trial judge has so determined.” 38 To be voluntary, the court must ensure that th e 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 pr esumed 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 conspi racy if the person he is alleged to have conspired with “is necessarily involved with th e person in the commission of the offense.” 11 Del. C. § 521. However, Shorts pled guilty to second de gree conspiracy with the intent to sell heroin, and “Wharton’s Rule does not apply to an offens e 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 wa s coerced into pleading guilty, unable to read, under the influence of drugs, and c onfused about the minimum and maximum

sentences. 43 This Court rejected the defendant’s claim, because at his colloquy, the defendant stated that he wa s not under the influence of dr ugs, was not threatened or promised anything to induce him to plea d guilty, and unders tood the minimum and maximum sentences. 44 The court concluded that “t he plea colloquy clearly reflects that [the defendant’s] plea was voluntary,” a nd 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 char ges. However, Shor ts testified at the colloquy that he went over the plea agreement, that no one forced him to plead guilty, and that he was satisfied w ith 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 agreemen t 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 an swers in open court.” 47 (14) In another similar case, Brown v. State , the defendant moved to withdraw his guilty plea, arguing that he di d not understand the na ture of the charges against him. 48 The court rejected this argument, finding that the defendant conferred with his counsel for thirty minutes pr ior to accepting the plea, and the judge confirmed on the record that the defend ant discussed the matter fully with his counsel. Thus, the court dete rmined it was “quite apparent that [t he 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 de fendant’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 agreem ent 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 a buse 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 OR DERED that the judgment of the Superior Court is AFFIRMED.
BY THE COURT:
/s/ Collins J. Seitz, Jr. Justice

49 Id.