by David Kim

The Supreme Court of Delaware held that when defense counsel moves to withdraw after a client expresses a desire to withdraw a plea, the trial court must resolve counsel’s motion before addressing the plea-­withdrawal request, because plea-­withdrawal proceedings are a critical stage at which the defendant has a Sixth Amendment right to counsel. When the court skips this step and the defendant effectively litigates plea withdrawal without counsel and without a valid waiver, the resulting denial of counsel requires reversal of the ensuing convictions, even if the defendant successfully withdrew the plea.

Background

On May 28, 2022, Troy Bolden allegedly shot his neighbor Jamie Faulkner in the neck and back outside their apartment complex. Bolden was arrested and indicted on charges of First-­Degree Attempted Murder, Possession of a Firearm During the Commission of a Felony, Reckless Endangering First Degree, and Possession of a Firearm by a Person Prohibited. At final case review, the State extended a plea offer, but Bolden appeared not to comprehend the minimum and maximum sentences he faced. After a recess to consult with his appointed counsel (“Trial Counsel”), Bolden completed a plea colloquy, stating he entered the plea freely and voluntarily. Bolden pleaded no contest to Assault Second Degree and two firearm charges in exchange for the State’s agreement to recommend no more than 15 years in prison at sentencing.

Approximately two months later, Bolden attempted to file a pro se motion to withdraw the plea. Because Bolden was represented by counsel, the motion was not docketed but was forwarded to Trial Counsel. Bolden’s motion alleged that Trial Counsel coerced him into entering the plea and that he entered it without fully understanding the evidence against him. Consistent with the state Supreme Court’s decision in Reed v. State, 258 A.3d 807 (Del. 2021), Trial Counsel filed a motion to withdraw as counsel, which attached Bolden’s pro se motion as an exhibit. Trial Counsel alleged that “a conflict ha[d] arisen between the client and Counsel” and that there had been a breakdown in their attorney-­client relationship because of Bolden’s lack of “trust and confidence.” Trial Counsel asked the court to appoint substitute counsel.

On October 9, 2023, the Superior Court held a hearing to address both motions. However, the court did not first resolve the motion to withdraw as counsel. Instead, the court moved immediately to Bolden’s request to withdraw his plea, addressing Bolden directly and allowing him to present his reasons for seeking withdrawal. When Trial Counsel cited Reed and referred the court back to his motion to withdraw, the trial court stated that Reed “doesn’t apply here…. We’re past that.” The court viewed Bolden’s concerns as expressing general dissatisfaction with counsel and stated it did not find any ineffective assistance “at this point.” Although both Trial Counsel and the State argued that conflict counsel should be appointed, the court did not address the motion to withdraw as counsel. Instead, the court instructed Trial Counsel to meet again with Bolden and report whether he still wanted to withdraw the plea.

After Trial Counsel confirmed that Bolden wanted to withdraw the plea, the Superior Court issued an order finding the plea was involuntary and permitting Bolden to withdraw it. The order did not rule on the motion to withdraw as counsel.

On May 9, 2024, the court held an office conference without Bolden present. The State expressed concern with Trial Counsel continuing to represent Bolden, and Trial Counsel confirmed ongoing communication difficulties. In response, the court stated that granting the plea-­withdrawal motion effectively mooted concerns about Trial Counsel’s continued representation. On May 15, 2024, the court issued an order denying the motion to withdraw as counsel, stating there were no grounds to terminate Trial Counsel’s representation because counsel’s “conduct did not fall below an objective standard of reasonable[ness].”

Bolden proceeded to trial with Trial Counsel representing him. The jury convicted Bolden of Attempted Murder and Possession of a Firearm During the Commission of a Felony, and the court sentenced him to 23 years in prison followed by probation. Bolden timely appealed.

Analysis

The Court began its analysis by discussing the constitutional right to counsel, which the Court characterized as a “foundational principle.” Purnell v. State, 254 A.3d 1053 (Del. 2021). The Sixth Amendment guarantees the right to effective assistance of counsel in criminal proceedings, and this right extends to all “critical stages that are part of the whole course of a criminal proceeding.” Maine v. Moulton, 474 U.S. 159 (1985); United States v. Wade, 388 U.S. 218 (1967). The Court noted that the state Supreme Court confirmed in Reed that a request to withdraw a guilty plea is one such critical stage. See also Rothgery v. Gillespie Cnty., 554 U.S. 191 (2008).

The Reed Court explained that while defense counsel controls most tactical choices in a criminal proceeding, certain fundamental decisions cannot be delegated to counsel, including whether to enter a plea and whether to attempt to withdraw a plea. See Cooke v. State, 977 A.2d 803 (Del. 2009). The Supreme Court held in Reed that if a criminal defendant expresses a desire to withdraw a plea before sentencing and does not rescind that request, defense counsel has a binary choice: “(1) file the requested motion, or (2) move to withdraw as counsel.” Counsel cannot avoid this choice merely because he disagrees with the client’s objective or believes there is no merit to the motion. Reed. Importantly, Reed explained that “[i]f 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.”

Announcement of How Courts Should Address a Reed Motion

The Court acknowledged that Reed did not address how a trial court should respond to a motion to withdraw as counsel in this context. However, the Court concluded that if Trial Counsel chooses to move to withdraw from representing a defendant, “it follows that the court must address and resolve that motion before addressing the defendant’s request to withdraw the plea.”

In addressing Trial Counsel’s motion to withdraw and request for appointment of substitute counsel, the Court explained that a trial judge enjoys broad discretion. Joyner v. State, 155 A.3d 832 (Del. 2017). The Sixth Amendment does not afford an indigent defendant the right to be appointed counsel whom the defendant prefers. Bultron v. State, 897 A.2d 758 (Del. 2006). Once counsel has been appointed, a defendant has a right to substitute counsel only upon a showing of good cause, “such as a conflict of interest, a complete breakdown in communication, or an irreconcilable conflict that could lead to an apparently unjust verdict.” Id. Mere dissatisfaction with appointed counsel does not, by itself, meet the good cause standard. Id.

However, the Court observed that “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.” Reed. The Court stated that a trial court must evaluate each motion on its merits and exercise sound discretion. But when circumstances do not suggest gamesmanship or use of a plea-­withdrawal motion to create an unfair tactical advantage, “the interests of justice will often favor appointing substitute counsel in these relatively unusual circumstances.” See United States v. Gonzalez-­Lopez, 548 U.S. 140 (2006). The Court stated that “[e]nsuring that the defendant has the advice of counsel in deciding whether to pursue a plea-­withdrawal motion is at least as critical to the justice system as ensuring that the defendant has an advocate in pursuing such a motion.”

The Court announced that if a trial court concludes there is no good cause to appoint substitute counsel and the defendant still insists on moving to withdraw his plea, “then the trial court must undertake the well-­established process to ensure that the defendant is aware of the advantages and disadvantages of representing himself, and the court must provide the necessary warnings under Faretta v. California, 422 U.S. 806 (1975).” The Court explained that a defendant’s waiver of counsel can be deemed effective only where the trial court conducts a “searching inquiry” sufficient to satisfy the court that the waiver was knowing and voluntary. The Court instructed that the trial court must inform the defendant “that he will have to conduct his defense in accordance with the Federal Rules of Evidence and Criminal Procedure, rules with which he may not be familiar; that the defendant may be hampered in presenting his best defense by his lack of knowledge of the law; and that the effectiveness of his defense may well be diminished by his dual role as attorney and accused.” United States v. Welty, 674 F.2d 185 (3d Cir. 1982).

The Court further instructed that after resolving counsel’s motion to withdraw, the trial court then may consider the defendant’s motion to withdraw the plea. If substitute counsel is to be appointed, new counsel must be afforded time to meet with the defendant and evaluate the merits of the request. If substitute counsel is not appointed and the defendant elects to proceed pro se, the court should address the motion under Superior Court Criminal Rule 32(d).

Application

In applying the newly announced framework, the Court concluded that Trial Counsel followed the path set forth in Reed by filing the motion to withdraw as counsel and asking the court to appoint new counsel. However, the trial court did not first resolve that motion. Instead, the court moved immediately to Bolden’s request to withdraw his plea and “effectively required Bolden to make and advance an oral, pro se motion to withdraw his plea.” The court never engaged in a colloquy with Bolden to determine whether he wanted to proceed without counsel or understood the implications of doing so.

The Court ruled that the trial court’s failure to address the motion to withdraw as counsel until after the plea was withdrawn “left Bolden without effective counsel in all aspects of the plea-­withdrawal proceedings.” Importantly, he did not have the advice of counsel regarding whether to pursue the motion. The Court stated that “[a] criminal defendant cannot be presumed to make critical decisions without counsel’s advice.” Although Bolden ultimately succeeded in withdrawing his plea, the absence of counsel was not harmless because “the presence of counsel may well have changed Bolden’s decision to pursue the motion in the first place,” the Court reasoned.

Conclusion

Accordingly, the Court reversed Bolden’s convictions and sentence and remanded for further proceedings. The Court directed that the no-­contest plea should be reinstated and substitute counsel should be appointed. With the advice of new counsel, Bolden may decide whether to pursue a new plea-­withdrawal motion. See: Bolden v. State, 2025 Del. LEXIS 461 (2025).  

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