IN THE SUPREME COURT OF THE STATE OF DELAWARE
MARK T. CLAY, §
§
Defendant Below, § No. 480, 2025
Appellant, §
§ Court Below—Superior Court
v. § of the State of Delaware
§
STATE OF DELAWARE, § Cr. ID No. 2301000219 (N)
§
Appellee. §
Submitted: April 23, 2026
Decided: June 22, 2026
Before SEITZ, Chief Justice; TRAYNOR and LEGROW, Justices.
ORDER
Upon consideration of the appellant’s Supreme Court Rule 26(c) brief, the
State’s response, and the record on appeal, it appears to the Court that:
(1) In 2023, a grand jury indicted Mark T. Clay for multiple sexual
offenses, including first-degree rape and continuous sexual abuse of a child. The
charges arose from Clay’s conduct with one of his children. After discovering child
pornography, which included images of this child, on Clay’s computer, the State
reindicted Clay to add multiple counts of dealing in child pornography.
(2) Clay filed a motion to suppress, arguing that the search warrants were
general warrants with no temporal limitations. Clay also argued that the search of
electronic devices he caused to be moved to his father’s house was not conducted within the ten-day period provided by the warrant. The court found that the warrants
were not general or overbroad but that the warrant to search the electronic devices
was executed outside of the ten-day window. The court ruled that the evidence
obtained from this warrant could not be used but stated that, if the State obtained and
timely executed a new warrant for the electronic devices, it would address any issues
arising from such a warrant.
(3) Clay also filed a motion to dismiss, asserting violation of his right to a
speedy trial, and a motion for severance of the child pornography charges. The
Superior Court denied both motions.
(4) A jury trial commenced on January 27, 2025. After the child testified
on the second day of trial, Clay pleaded guilty to two counts of first-degree rape and
sexual exploitation of a child in exchange for the State’s dismissal of the remaining
charges. The State also agreed not to seek sentencing enhancement under 11 Del. C.
§ 4205A. The court ordered a presentence investigation.
(5) On April 29, 2025, Clay’s counsel (not trial counsel but another
attorney in the Public Defender’s office) filed a motion to withdraw the guilty plea.
The motion was based on Clay’s allegations that his trial counsel had provided
inadequate representation. Counsel also filed a motion to withdraw because the
allegations of inadequate representation by a public defender created a conflict of
interest for the Public Defender’s Office. The State opposed the motion to withdraw
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the guilty plea. The court granted counsel’s motion to withdraw and ordered the
appointment of new counsel for Clay.
(6) At the September 10, 2025 hearing on the motion to withdraw the guilty
plea, Clay’s new counsel described the events leading to the motion to withdraw,
summarized the contents of the motion, and stated that Clay would answer any
questions that the court had regarding the motion. The court then heard arguments
from the State and Clay. At the conclusion of the hearing, the Superior Court denied
Clay’s motion to withdraw his guilty plea. On October 31, 2025, the court sentenced
Clay to seventy-five years of Level V incarceration, suspended after forty years for
decreasing levels of supervision. This appeal followed.
(7) Clay’s counsel (“Counsel”) filed a brief and a motion to withdraw under
Supreme Court Rule 26(c) (“Rule 26(c)”). Counsel asserts that, based upon a
complete and careful examination of the record, there are no arguably appealable
issues. Counsel informed Clay of the provisions of Rule 26(c) and provided Clay
with a copy of the motion to withdraw and the accompanying brief. Counsel also
informed Clay of his right to identify any points he wished this Court to consider on
appeal. Clay has submitted points for the Court’s consideration. The State has
responded to the Rule 26(c) brief and argues that the Superior Court’s judgment
should be affirmed.
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(8) When reviewing a motion to withdraw and an accompanying brief, this
Court must: (i) be satisfied that defense counsel has made a conscientious
examination of the record and the law for arguable claims; and (ii) conduct its own
review of the record and determine whether the appeal is so totally devoid of at least
arguably appealable issues that it can be decided without an adversary presentation.1
In his points submitted to this Court, Clay argues that the Superior Court erred in
denying his plea-withdrawal motion.
(9) We review the Superior Court’s denial of a motion to withdraw a guilty
plea for abuse of discretion. 2 Superior Court Criminal Rule 32(d) permits withdrawal
of a plea before sentencing for “any fair and just reason.” 3 The defendant bears the
burden of establishing a fair and just reason. 4 In deciding whether to grant a motion
to withdraw a plea, the Superior Court considers 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
1
Penson v. Ohio, 488 U.S. 75, 83 (1988); Leacock v. State, 690 A.2d 926, 927-28 (Del. 1996). 2
Scarborough v. State, 938 A.2d 644, 649 (Del. 2007).
3
Super. Ct. Crim. R. 32(d).
4
Scarborough, 938 A.2d at 649.
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counsel; and (v) granting the motion would prejudice the State or unduly
inconvenience the court.5
(10) Clay does not identify any procedural defect in the taking of his plea.
He suggested below that his anxiety issues constituted a procedural defect, but he
did not mention any such issues during the plea colloquy. Clay indicated in the
Truth-in-Sentencing Guilty Plea Form that he had never been a patient in a mental
hospital and that he was not under the influence of any drugs. As required by
Superior Court Criminal Rule 11(c), the Superior Court discussed the plea and its
ramifications with Clay during the plea colloquy. The Superior Court did not err in
finding that no there was procedural defect in Clay’s guilty plea.
(11) Clay claims that his plea was coerced and involuntary. As the Superior
Court recognized, the record contradicts this claim. In the Truth-in-Sentencing
Guilty Plea Form, Clay indicated that he voluntarily decided to plead guilty and that
all his answers to the questions in the form were truthful.
(12) During the plea colloquy, Clay affirmed that no one forced him to plead
guilty and that he understood that he was waiving his trial and appeal rights,
including appellate review of the denial of the motions he had filed. He further
indicated that he had enough time to confer with his trial counsel about the terms of
5
Id.
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the plea agreement. “A defendant’s statements to the Superior Court during the
guilty plea colloquy are presumed to be truthful.” 6 In the absence of clear and
convincing evidence to the contrary, Clay is bound by his representations during the
guilty plea colloquy and in the Truth-in-Sentencing Guilty Plea Form.7
(13) Clay asserts that there is “a lot of evidence that directly refutes the
allegations” against him but fails to identify any of this evidence or explain how it
establishes a basis to assert legal innocence. 8 In denying the motion to withdraw the
plea, the Superior Court discussed how there was “strong testimony and
documentary and pictorial evidence” of Clay’s guilt. 9 The court emphasized the
“compelling” and “significant” nature of the complaining witness’s testimony
regarding Clay’s conduct.10 Clay admitted that he committed the crimes of firstdegree rape and sexual exploitation of a child during the plea colloquy. We do not
discern any error the Superior Court’s finding that Clay failed to establish a basis to
assert legal innocence.
6
Somerville v. State, 703 A.2d 629, 632 (Del. 1997).
7
Id.
8
Opening Br. Ex. A at 4.
9
Opening Br. App. at A1113.
10
Id. at A1111-13.
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(14) As he did below, Clay argues that he lacked adequate legal counsel
during the plea process because his trial counsel was ineffective. He also argues that
the attorney appointed to handle the motion to withdraw his plea was ineffective, but
this claim was not raised or addressed below so we will not consider it for the first
time on appeal.11 To establish that his trial counsel was ineffective, Clay must show:
(i) his trial counsel’s representation fell below an objective standard of
reasonableness and that (ii) there is a reasonable probability that but for his trial
counsel’s errors, Clay would have insisted on proceeding with trial. 12 There is a
strong presumption that counsel’s representation was professionally reasonable. 13
(15) The Superior Court found that trial counsel’s representation did not fall
below an objective standard of reasonableness, highlighting trial counsel’s zealous
pretrial motion practice and best efforts in cross-examining the complaining witness.
Clay contends that his trial counsel was ineffective for failing to collect and review
evidence Clay identified, but he does not describe any of this evidence or explain
how it would be helpful to his case. During the plea withdrawal hearing, Clay
suggested that there were pictures, videos, cell phone data, and bank statements his
11
Desmond v. State, 654 A.2d 821, 829 (Del. 1994) (declining to consider ineffective assistance of counsel claim that was not decided in the Superior Court).
12
Hill v. Lockhart, 474 U.S. 52, 60 (1985); Strickland v. Washington, 466 U.S. 668, 690-96 (1984). 13
Strickland, 466 U.S. at 689.
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trial counsel should have collected and reviewed. He did not, and does not, explain
how those materials would refute the numerous incidents that the child described as
occurring over the course of a decade. Nor does he address how the allegedly
exculpatory evidence relates to the child pornography charges. A few of the
photographs were admitted during the child’s testimony, but Clay pleaded guilty
before photographs of other children would have been introduced at trial. The
Superior Court did not err in finding that trial counsel’s representation of Clay was
adequate.
(16) Finally, the Superior Court found that withdrawal of the plea would
significantly prejudice the State because it might not be possible to schedule a new
trial until 2027 and witness memories would continue to fade in the meantime. The
court noted that the victim might not be willing to undergo the ordeal of testifying
again, leaving the State without a key witness. A new trial would also require the
court to expend scarce resources and convene another jury. Based on its findings
that none of the relevant factors weigh in favor of plea withdrawal, the Superior
Court denied Clay’s motion to withdraw his plea. We agree with the Superior
Court’s conclusion that the relevant factors did not weigh in favor of granting Clay’s
motion to withdraw his guilty plea.
(17) The Court has reviewed the record carefully and concluded that Clay’s
appeal is wholly without merit and devoid of any arguably appealable issue. We also
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are satisfied that Counsel made a conscientious effort to examine the record and the
law and properly determined that Clay could not raise a meritorious claim on appeal.
NOW, THEREFORE, IT IS ORDERED that the judgment of the Superior
Court be AFFIRMED and the motion to withdraw is moot.
BY THE COURT:
/s/ Gary F. Traynor
Justice
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