IN THE SUPREME COURT OF THE STATE OF DELAWARE
MICHAEL A. BROWN, § § No. 51, 2015 Defendant Below- § Appellant, § § v. § Court Below—Superior Court § of the State of Delaware, STATE OF DELAWARE, § in and for New Castle County § Cr. ID 1107009697 Plaintiff Below- § Appellee. §
Submitted: July 17, 2015 Decided: September 21, 2015
Before STRINE, Chief Justice; VAUGHN, and SEITZ, Justices.
ORDER
This 21st day of September 2015, upon consideration of the
appellant’s opening brief, the State’s motion to affirm, and the record on
appeal, it appears to the Court that:
(1) The appellant, Michael Brown, filed this appeal from the
Superior Court’s denial of his first motion for postconviction relief. The
State has filed a motion to affirm the judgment below on the ground that it is
manifest on the face of Brown’s opening brief that his appeal is without
merit. We agree and affirm.
(2) The record reflects that, on May 15, 2012, Brown pled guilty to
two counts of Assault in the First Degree (as lesser included offenses to Attempted Murder in the First Degree) and one count of Possession of a
Deadly Weapon during the Commission of a Felony. Before sentencing,
Brown’s appointed counsel filed a motion to withdraw Brown’s guilty plea
and filed a motion to withdraw as counsel.
(3) The Superior Court held a hearing on both motions on July 24,
2012. Brown told the judge that he wanted to withdraw his plea because he
was not happy with his trial counsel. Brown stated that counsel had never
expressed any confidence in the outcome of going to trial and had told
Brown that he thought he would be found guilty by a jury and would be
sentenced to thirty-five or forty years in prison. Brown asserted that counsel
had incorrectly informed him of the recommended sentence under the
sentencing guidelines (although Brown conceded that the statutory minimum
and maximum sentence were correct on the guilty plea agreement). Brown
told the judge that he supported his counsel’s motion to withdraw and that he
wanted the opportunity to retain his own private counsel and go to trial.
(4) The Superior Court explained to Brown that, if Brown’s
appointed counsel were permitted to withdraw, the court would not appoint
substitute counsel to represent him at State expense. The Superior Court
explained to Brown the dangers of representing himself, if the Court granted
his motion to withdraw his plea and Brown was unable to retain private
2 counsel. Brown acknowledged his understanding. In response, the State
asserted that Brown had not established a fair and just reason under Superior
Court Criminal Rule 32(d) to permit withdrawal of his plea.
(5) After taking both motions under advisement, the Superior Court
issued a written decision on July 31, 2012, granting counsel’s motion to
withdraw and staying a further ruling on Brown’s motion to withdraw his
plea to allow Brown the opportunity to retain new counsel. The Superior
Court stated that, if new counsel entered an appearance in the case by
September 7, 2012, then new counsel would be permitted to file an amended
motion to withdraw Brown’s plea. If new counsel had not entered the case
by September 7, 2012, then Brown’s motion to withdraw his plea would be
denied and Brown would proceed to sentencing pro se on September 28,
2012.
(6) New counsel did not enter an appearance on Brown’s behalf.
On September 28, 2012, Brown appeared for sentencing pro se. The
Superior Court sentenced him to a total period of thirty-two years at Level V
imprisonment, to be suspended after serving seventeen years in prison for
decreasing levels of supervision. Brown did not file a direct appeal.
(7) Instead, on October 9, 2013, Brown filed a motion for
postconviction relief, alleging that the Superior Court erred in denying his
3 motion to withdraw his plea, that his trial counsel was ineffective, and that
he was denied his right to counsel at sentencing. The Superior Court
appointed postconviction counsel to represent Brown. On May 9, 2014,
postconviction counsel filed a motion to withdraw under Superior Court
Criminal Rule 61(e)(2) on the grounds that Brown’s arguments were so
lacking in merit that counsel could not ethically advocate them and because
counsel found no other arguable ground for relief. On December 9, 2014, a
Superior Court Commissioner issued a report finding that Brown’s claims
were both procedurally barred and without merit. The Commissioner
recommended that postconviction counsel be permitted to withdraw and that
Brown’s motion be denied. On January 8, 2015, the Superior Court accepted
the Commissioner’s report and recommendation and denied Brown’s
motion. This appeal followed.
(8) In his opening brief on appeal, Brown argues that: (i) his trial
counsel was ineffective for failing to conduct an adequate investigation in
his case and for failing to obtain surveillance videos; (ii) his trial counsel
was ineffective for misinforming him about the enhanced recommended
sentence under the sentencing guidelines because of his prior criminal
record; and (iii) he was denied his right to counsel at sentencing.
4 (9) We review the Superior Court’s denial of postconviction relief
for abuse of discretion, although we review questions of law de novo.1
Brown’s first issue on appeal, contending that his trial counsel was
ineffective for failing to conduct an adequate investigation, was not raised in
the motion he filed in the Superior Court. In the absence of any showing of
plain error, we will not consider this claim for the first time on appeal.2
(10) Brown’s second claim is that his trial counsel was ineffective
for failing to correctly advise him of the applicable Truth in Sentencing
guidelines. To establish a claim of ineffective assistance of counsel in the
context of a guilty plea, a defendant must demonstrate that: (a) counsel’s
conduct fell below an objective standard of reasonableness; and (b) there is a
reasonable probability that, but for counsel’s errors, the defendant would not
have pled guilty but would have insisted on going to trial. 3 A defendant
must make concrete allegations of cause and actual prejudice to substantiate
a claim of ineffective assistance of counsel or else risk summary dismissal. 4
(11) As the Superior Court correctly informed Brown at the hearing
on his motion to withdraw, a mistake regarding the sentencing guidelines
does not negate an otherwise valid guilty plea because the guidelines are
1 Claudio v. State, 958 A.2d 846, 850 (Del. 2008). 2 Keyser v. State, 2014 WL 1168835, *2 (Del. Mar. 20, 2014). 3 Hill v. Lockhart, 474 U.S. 52, 58-59 (1985). 4 Younger v. State, 580 A.2d 552, 556 (Del. 1990).
5 voluntary and are not binding.5 Here, Brown was correctly informed of the
statutory range of sentences for his convictions. Even though the plea
agreement did not reflect the correct presumptive sentence under the TIS
guidelines given Brown’s prior criminal record, we find no prejudice to
Brown. Brown originally was charged with three counts of attempted
murder, a class A felony, as well as six additional felony charges. If Brown
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IN THE SUPREME COURT OF THE STATE OF DELAWARE
MICHAEL A. BROWN, § § No. 51, 2015 Defendant Below- § Appellant, § § v. § Court Below—Superior Court § of the State of Delaware, STATE OF DELAWARE, § in and for New Castle County § Cr. ID 1107009697 Plaintiff Below- § Appellee. §
Submitted: July 17, 2015 Decided: September 21, 2015
Before STRINE, Chief Justice; VAUGHN, and SEITZ, Justices.
ORDER
This 21st day of September 2015, upon consideration of the
appellant’s opening brief, the State’s motion to affirm, and the record on
appeal, it appears to the Court that:
(1) The appellant, Michael Brown, filed this appeal from the
Superior Court’s denial of his first motion for postconviction relief. The
State has filed a motion to affirm the judgment below on the ground that it is
manifest on the face of Brown’s opening brief that his appeal is without
merit. We agree and affirm.
(2) The record reflects that, on May 15, 2012, Brown pled guilty to
two counts of Assault in the First Degree (as lesser included offenses to Attempted Murder in the First Degree) and one count of Possession of a
Deadly Weapon during the Commission of a Felony. Before sentencing,
Brown’s appointed counsel filed a motion to withdraw Brown’s guilty plea
and filed a motion to withdraw as counsel.
(3) The Superior Court held a hearing on both motions on July 24,
2012. Brown told the judge that he wanted to withdraw his plea because he
was not happy with his trial counsel. Brown stated that counsel had never
expressed any confidence in the outcome of going to trial and had told
Brown that he thought he would be found guilty by a jury and would be
sentenced to thirty-five or forty years in prison. Brown asserted that counsel
had incorrectly informed him of the recommended sentence under the
sentencing guidelines (although Brown conceded that the statutory minimum
and maximum sentence were correct on the guilty plea agreement). Brown
told the judge that he supported his counsel’s motion to withdraw and that he
wanted the opportunity to retain his own private counsel and go to trial.
(4) The Superior Court explained to Brown that, if Brown’s
appointed counsel were permitted to withdraw, the court would not appoint
substitute counsel to represent him at State expense. The Superior Court
explained to Brown the dangers of representing himself, if the Court granted
his motion to withdraw his plea and Brown was unable to retain private
2 counsel. Brown acknowledged his understanding. In response, the State
asserted that Brown had not established a fair and just reason under Superior
Court Criminal Rule 32(d) to permit withdrawal of his plea.
(5) After taking both motions under advisement, the Superior Court
issued a written decision on July 31, 2012, granting counsel’s motion to
withdraw and staying a further ruling on Brown’s motion to withdraw his
plea to allow Brown the opportunity to retain new counsel. The Superior
Court stated that, if new counsel entered an appearance in the case by
September 7, 2012, then new counsel would be permitted to file an amended
motion to withdraw Brown’s plea. If new counsel had not entered the case
by September 7, 2012, then Brown’s motion to withdraw his plea would be
denied and Brown would proceed to sentencing pro se on September 28,
2012.
(6) New counsel did not enter an appearance on Brown’s behalf.
On September 28, 2012, Brown appeared for sentencing pro se. The
Superior Court sentenced him to a total period of thirty-two years at Level V
imprisonment, to be suspended after serving seventeen years in prison for
decreasing levels of supervision. Brown did not file a direct appeal.
(7) Instead, on October 9, 2013, Brown filed a motion for
postconviction relief, alleging that the Superior Court erred in denying his
3 motion to withdraw his plea, that his trial counsel was ineffective, and that
he was denied his right to counsel at sentencing. The Superior Court
appointed postconviction counsel to represent Brown. On May 9, 2014,
postconviction counsel filed a motion to withdraw under Superior Court
Criminal Rule 61(e)(2) on the grounds that Brown’s arguments were so
lacking in merit that counsel could not ethically advocate them and because
counsel found no other arguable ground for relief. On December 9, 2014, a
Superior Court Commissioner issued a report finding that Brown’s claims
were both procedurally barred and without merit. The Commissioner
recommended that postconviction counsel be permitted to withdraw and that
Brown’s motion be denied. On January 8, 2015, the Superior Court accepted
the Commissioner’s report and recommendation and denied Brown’s
motion. This appeal followed.
(8) In his opening brief on appeal, Brown argues that: (i) his trial
counsel was ineffective for failing to conduct an adequate investigation in
his case and for failing to obtain surveillance videos; (ii) his trial counsel
was ineffective for misinforming him about the enhanced recommended
sentence under the sentencing guidelines because of his prior criminal
record; and (iii) he was denied his right to counsel at sentencing.
4 (9) We review the Superior Court’s denial of postconviction relief
for abuse of discretion, although we review questions of law de novo.1
Brown’s first issue on appeal, contending that his trial counsel was
ineffective for failing to conduct an adequate investigation, was not raised in
the motion he filed in the Superior Court. In the absence of any showing of
plain error, we will not consider this claim for the first time on appeal.2
(10) Brown’s second claim is that his trial counsel was ineffective
for failing to correctly advise him of the applicable Truth in Sentencing
guidelines. To establish a claim of ineffective assistance of counsel in the
context of a guilty plea, a defendant must demonstrate that: (a) counsel’s
conduct fell below an objective standard of reasonableness; and (b) there is a
reasonable probability that, but for counsel’s errors, the defendant would not
have pled guilty but would have insisted on going to trial. 3 A defendant
must make concrete allegations of cause and actual prejudice to substantiate
a claim of ineffective assistance of counsel or else risk summary dismissal. 4
(11) As the Superior Court correctly informed Brown at the hearing
on his motion to withdraw, a mistake regarding the sentencing guidelines
does not negate an otherwise valid guilty plea because the guidelines are
1 Claudio v. State, 958 A.2d 846, 850 (Del. 2008). 2 Keyser v. State, 2014 WL 1168835, *2 (Del. Mar. 20, 2014). 3 Hill v. Lockhart, 474 U.S. 52, 58-59 (1985). 4 Younger v. State, 580 A.2d 552, 556 (Del. 1990).
5 voluntary and are not binding.5 Here, Brown was correctly informed of the
statutory range of sentences for his convictions. Even though the plea
agreement did not reflect the correct presumptive sentence under the TIS
guidelines given Brown’s prior criminal record, we find no prejudice to
Brown. Brown originally was charged with three counts of attempted
murder, a class A felony, as well as six additional felony charges. If Brown
had gone to trial, he faced the possibility of a life sentence. Thus, he
received a substantial benefit by agreeing to plead guilty to the lesser
included charges of assault and to only one weapon charge.6 We find no
merit to his contention that he would not have pled guilty if he had been
correctly informed of the non-binding TIS guideline sentence.7
(12) Brown’s final claim is that he was denied his right to counsel at
his sentencing. The Superior Court, however, carefully reviewed Brown’s
options with him when Brown indicated at the hearing on counsel’s motion
to withdraw that he supported his counsel’s motion. Brown understood that
the Superior Court would grant Brown additional time to retain private
counsel but that the Superior Court would not appoint substitute counsel to
represent him at State expense, if appointed counsel was granted leave to
5 Siple v. State, 701 A.2d 79, 82-83 (Del. 1997). 6 Jamison v. State, 2003 WL 21295908 (Del. June 3, 2003). 7 Stanley v. State, 2013 WL 543897 (Del. Feb. 12, 2013).
6 withdraw. Brown understood that his choice was to proceed with his
appointed counsel, retain his own private counsel, or proceed pro se. 8 The
record reflects that Brown validly waived his right to appointed counsel and
then failed to retain private counsel. Under these circumstances, Brown was
not denied his right to counsel at sentencing.
NOW, THEREFORE, IT IS ORDERED that the judgment of the
Superior Court is AFFIRMED.
BY THE COURT:
/s/ Collins J. Seitz, Jr. Justice
8 Bultron v. State, 897 A.2d 758, 763 (Del. 2006).