Tunnell & Raysor, P.A.

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COVID-19 Plea by Appointment

A felony case in Delaware generally takes approximately six months from the date of arrest to resolution of the matter. Today we consider the topic of a plea by appointment involving an incarcerated defendant under the newly enacted Superior Court policies and procedures during the COVID-19 lockdown.

Delaware Superior Court Criminal Rule 43 requires the presence of the defendant "at the time of the plea" and "at the time of sentencing." Today we were able to secure a probationary sentence for one of our incarcerated clients by remote appearance from the Sussex Correctional Institution. How was this possible in view of Rule 43's personal appearance requirement?

Our client who entered a Superior Court plea remotely today was scheduled to appear for his case review on April 20, 2020. In general, case review is the defendant's first opportunity to resolve his case by accepting the State's offer. Here, the client likely would have been offered an agreement with a probation recommendation to the sentencing judge but our courts will be closed on April 20. As a result, our office worked with the assigned deputy attorney general to obtain a plea agreement; we sent the offer to this client; we spoke via video phone with the client to ensure that he was interested in the State's offer; defense counsel and the State filed a joint motion to waive the defendant's Rule 43 personal appearance; and we scheduled a remote plea by appointment set for this morning.

Present by audio or by audio and video for this remote proceeding were: a Superior Court judge; the deputy attorney general; defense counsel; a court reporter; and the defendant. The judge conducted an inquiry into the defendant's desire to waive personal appearance under Rule 43, and then he completed a plea colloquy to determine that the defendant was making a knowing, intelligent and voluntary waiver of his rights. While the procedure was more complicated than a typical plea by appointment in Superior Court, the client received a probationary sentence today without having to wait until our courts are back at full capacity.

Please call Tunnell & Raysor, P.A. with any legal issues that you are experiencing during this remote work situation.

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