Kinzer v. State

• Court: Supreme Court of Delaware
• Decided: June 29, 2015
• Docket: 713, 2014
• Status: Published

Opinion

IN THE SUPREME COURT OF THE STATE OF DELAWARE

WARREN KINZER, § § No. 713, 2014 Defendant Below- § Appellant, § § v. § Court Below—Superior Court § of the State of Delaware, STATE OF DELAWARE, § in and for Sussex County § Cr. ID 1304021423 Plaintiff Below- § Appellee. §

Submitted: April 29, 2015 Decided: June 29, 2015

Before STRINE, Chief Justice; HOLLAND, and VAUGHN, Justices.

ORDER

This 29th day of June 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, Warren Kinzer, 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 Superior Court’s judgment on the ground that it is manifest on

the face of Kinzer’s opening brief that his appeal is without. We agree and affirm.

(2) The record reflects that Kinzer pled guilty on November 8, 2013 to

one count each of continuous sexual abuse of a child and second degree sexual

abuse of a child by a person in a position of trust. The victim was Kinzer’s granddaughter. After a presentence investigation, the Superior Court sentenced

Kinzer to a total period of twenty-eight years at Level V incarceration, to be

suspended after serving twelve years in prison and successful completion of the

Transitions Sex Offender Program for decreasing levels of supervision. Kinzer did

not file a direct appeal. Instead, on August 13, 2014, Kinzer filed a motion for

postconviction relief, which the Superior Court denied on December 2, 2014. This

appeal followed.

(3) In his opening brief on appeal, Kinzer asserts that his guilty plea was

not knowing and voluntary because of the ineffective assistance of his trial

counsel. Kinzer contends that his trial counsel was ineffective for failing to

investigate mitigating evidence, for failing to provide him with a copy of the

presentence investigation report (“PSI”), and for failing to inform him of his right

to appeal.1 Kinzer’s contentions that his trial counsel was ineffective for failing to

provide him with a copy of the PSI and for failing to inform him of his right to

appeal were not raised in the motion he filed in the Superior Court. Absent plain

error, which we do not find, we will not consider these claims for the first time on

appeal.2

1 To the extent Kinzer raised other issues in the motion he filed in the Superior Court, he has waived his right to review of those claims by failing to argue those issues in his opening brief on appeal. See Murphy v. State, 632 A.2d 1150, 1152 (Del. 1993). 2 Del. Supr. Ct. R. 8.

2 (4) The only issue properly before the Court is Kinzer’s claim that his

trial counsel was ineffective for failing to investigate mitigating evidence. Kinzer

contends that, if his trial counsel had come to see him promptly after his arrest, he

would have seen evidence of bruising that the victim allegedly inflicted upon him.

Kinzer also asserts that his counsel failed to interview a guidance counselor and the

vice principal of the victim’s school, who would have told counsel that Kinzer

“had a few problems” with his granddaughter. Finally, Kinzer contends that

counsel failed to look at the victim’s cell phone, which would have shown how the

victim treated Kinzer.

(5) To support a claim of ineffective assistance of counsel following the

entry 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 causation and actual prejudice to substantiate a claim of ineffective

assistance of counsel.4 The Superior Court concluded that Kinzer’s allegations

about his attorney’s failure to discover purported mitigating evidence were vague

3 Hill v. Lockhart, 474 U.S. 52, 58 (1985). 4 Younger v. State, 580 A.2d 552, 556 (Del. 1980).

3 and conclusory and failed to establish a reasonable probability that Kinzer would

not have pled guilty.

(6) After careful consideration of the parties’ positions, we find no merit

to Kinzer’s appeal. We agree with the Superior Court’s conclusion that Kinzer’s

claim about his attorney’s failure to present available mitigating evidence is vague

and conclusory and fails to establish how the salleged evidence would have

changed the outcome of the proceeding. Moreover, Kinzer stated under oath at his

plea colloquy that he was satisfied with his counsel’s representation. He indicated

that he fully understood the charges against him and that he understood the

consequences of pleading guilty. He stated that he was pleading guilty because he

was, in fact, guilty of the charged offenses. He also stated, among other things,

that no one had threatened him or coerced him into pleading guilty. In the absence

of clear and convincing evidence to the contrary, Kinzer is bound by these

statements.5 We thus reject Kinzer’s claim that his guilty plea was involuntary due

to his counsel’s ineffectiveness.

5 Somerville v. State, 703 A.2d 629, 632 (Del. 1997).

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

Court is AFFIRMED.

BY THE COURT: /s/ Leo E. Strine, Jr. Chief Justice