Dawud v. State of Delaware

• Court: Supreme Court of Delaware
• Decided: February 26, 2020
• Docket: 396, 2019
• Status: Published

Opinion

IN THE SUPREME COURT OF THE STATE OF DELAWARE

MUSA DAWUD, § § No. 396, 2019 Defendant Below, § Appellant, § Court Below—Superior Court § of the State of Delaware v. § § Cr. ID No. 1902011721 (N) STATE OF DELAWARE, § § Plaintiff Below, § Appellee. §

Submitted: December 27, 2019 Decided: February 26, 2020

Before SEITZ, Chief Justice; VAUGHN, and TRAYNOR, Justices.

ORDER

After consideration of the appellant’s brief filed under Supreme Court Rule

26(c), his attorney’s motion to withdraw, and the State’s response, the Court

concludes that:

(1) In April 2019, a grand jury indicted the appellant, Musa Dawud, on

multiple weapon charges. On August 19, 2019, Dawud pled guilty to possession of

a firearm by a person prohibited (“PFBPP”) in exchange for dismissal of the other

charges. The Superior Court immediately sentenced Dawud to fifteen years of Level

V incarceration, with credit for 157 days previously served, suspended after the minimum mandatory five years,1 followed by two years of Level III probation. This

appeal followed.

(2) On appeal, Dawud’s counsel (“Counsel”) filed a brief and a motion to

withdraw under Supreme Court Rule 26(c). Counsel asserts that, based upon a

complete and careful examination of the record, there are no arguably appealable

issues. Counsel informed Dawud of the provisions of Rule 26(c) and provided

Dawud with a copy of the motion to withdraw and the accompanying brief.

(3) Counsel also informed Dawud of his right to identify any points he

wished this Court to consider on appeal. Dawud has submitted points for this Court’s

consideration. The State has responded to Dawud’s arguments and has moved to

affirm the Superior Court’s judgment.

(4) When reviewing a motion to withdraw and an accompanying brief

under Rule 26(c), 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

1 Dawud was subject to a five-year minimum mandatory sentence because he had a previous violent felony conviction (carrying a concealed deadly weapon (firearm)) in the last ten years. 11 Del. C. § 1448(e)(1)(b) (stating that person convicted of PFBB shall receive a minimum sentence of five years at Level V if they have been convicted within last ten years of a violent felony); 11 Del. C. § 4201(c) (defining carrying a concealed deadly weapon (firearm) as a violent felony).

2 devoid of at least arguably appealable issues that it can be decided without an

adversary presentation.2

(5) Dawud’s arguments on appeal may be summarized as follows: (i) his

guilty plea was not knowing or intelligent; (ii) there was insufficient evidence to

support the charges; (iii) the preliminary hearing and indictment were untimely; (iv)

the person who contacted the police about the gun she found in Dawud’s bedroom

closet was untruthful and unreliable; (v) there was no victim; (vi) he did not receive

his Miranda rights when he was arrested; (vi) his bail was set too high; (vii) the

attorney who replaced his first attorney was unsatisfactory; (viii) he did not receive

credit for time he served at the juvenile holding facility; and (ix) the Supreme Court

Clerk’s Office should not have sent one of his letters to Counsel. After careful

consideration of the remaining claims, we find no merit to Dawud’s appeal.

(6) With the exception of the claim regarding the performance regarding

his attorney, which we decline to consider for the first time on direct appeal,3 the

credit time claim, and the complaint concerning the Clerk’s Office, the disposition

of Dawud’s remaining claims depends on whether Dawud entered his guilty plea

knowingly, intelligently, and voluntarily. A knowing, intelligent, and voluntary

2 Penson v. Ohio, 488 U.S. 75, 83 (1988); Leacock v. State, 690 A.2d 926, 927-28 (Del. 1996). 3 Desmond v. State, 654 A.2d 821, 829 (Del. 1994) (“This Court has consistently held it will not consider a claim of ineffective assistance of counsel on direct appeal if that issue has not been decided on the merits in the trial court.”). 3 guilty waives a defendant’s right to challenge any errors occurring before the entry

of the plea.4

(7) The record reflects that Dawud’s plea was knowing, intelligent, and

voluntary. In the Truth-in-Sentencing Guilty Plea form, Dawud indicated that he

understood he was waiving certain constitutional rights, including his right to a jury

trial and to present evidence in his defense. During his plea colloquy with the

Superior Court judge, Dawud affirmed that he had reviewed the guilty plea form

with Counsel, no one forced him to plead guilty, he understood that he was giving

up certain constitutional rights, including the right question to witnesses and to make

the State prove every part of the charge beyond a reasonable doubt, and he faced a

sentence of up to fifteen years, which included a five-year minimum mandatory

sentence that could not be suspended. He also affirmed that he committed the

offense of knowingly purchasing, owning, possessing, or controlling a firearm after

having been convicted of carrying a concealed deadly weapon, a felony, in 2017.

(8) Contrary to Dawud’s contention, a defendant without a law degree may

enter a knowing and intelligent guilty plea. Dawud’s responses to the Superior Court

judge’s questions reflect that he understood what he was doing. Absent clear and

convincing evidence to the contrary, which he has not identified, Dawud is bound

4 Miller v. State, 840 A.2d 1229, 1232 (Del. 2003); Downer v. State, 543 A.2d 309, 312–13 (Del. 1988). 4 by his representations during the plea colloquy and in the Truth-in-Sentencing Guilty

Plea Form.5 As a result of his knowing, intelligent, and voluntary guilty plea, Dawud

has waived his claims concerning the sufficiency of the evidence, the timing of the

preliminary hearing and indictment, the credibility of the person who reported him

to the police, the lack of a victim, the amount of bail, and his Miranda rights.6

(9) Dawud argues that he is entitled to credit for time he spent in a juvenile

detention center before he was transferred to Howard R. Young Correctional Center.

Dawud does not provide any support for this contention and we are unable to

determine from the record whether the 157 days of credit he received for time he

served before his sentencing includes time he spent in the juvenile detention center.

We agree with the State’s suggestion that Dawud should file a motion in the Superior

Court so that the Superior Court can determine in the first instance whether Dawud

is entitled to additional credit for time he spent in a juvenile detention facility.

(10) Finally, Dawud contends that the Clerk’s Office should not have

forwarded a letter he sent to the Court to Counsel. When a party is represented by

an attorney as Dawud was here, communications with the Court must go through the

attorney. The Clerk’s Office appropriately forwards correspondence from

represented parties like Dawud to their counsel to handle as they deem appropriate.

5 Somerville v. State, 703 A.2d 629, 632 (Del. 1997). 6 See supra n.4.

5 (11) Having carefully reviewed the record, we conclude that Dawud’s

appeal is wholly without merit and devoid of any arguably appealable issue. We

also are satisfied that Counsel has made a conscientious effort to examine the record

and the law and has properly determined that Dawud could not raise a meritorious

claim in this appeal.

NOW, THEREFORE, IT IS ORDERED that the judgment of the Superior

Court is AFFIRMED. The motion to withdraw is moot.

BY THE COURT:

/s/ Collins J. Seitz, Jr. Chief Justice