IN THE SUPREME COURT OF THE STATE OF DELAWARE
JEROME T. MILLER, § § Defendant Below, § No. 379, 2014 Appellant, § § Court Below—Superior Court v. § of the State of Delaware, § in and for Sussex County STATE OF DELAWARE, § Cr. ID No. 1110012379 § Plaintiff Below, § Appellee. §
Submitted: October 22, 2014 Decided: December 9, 2014
Before HOLLAND, RIDGELY, and VALIHURA, Justices.
ORDER
This 9th day of December 2014, upon consideration of the appellant's
Supreme Court Rule 26(c) brief, the State's response, and the record below, it
appears to the Court that:
(1) In January 2012, the appellant, Jerome Miller, was indicted for
Aggravated Menacing, Possession of a Deadly Weapon During the Commission of
a Felony (“PDWDCF”), Attempted Strangulation, and Assault in the Third Degree.
These charges arose from Miller’s October 18, 2011 attack on his then-wife.
Miller was ordered not to contact his wife as part of his bail conditions.
(2) On February 29, 2012, in anticipation of a March 5, 2012 case review,
the State made a plea offer. Under the February 29, 2012 plea offer, Miller would plead guilty to Aggravated Menacing, Attempted Strangulation, and Assault in the
Third Degree and the State would agree to enter a nolle prosequi on the remaining
charges. The State and Miller would also agree to recommend the following
sentence: (i) for Aggravated Menacing, five years of Level V incarceration,
suspended after one year for two years of Level III supervision with GPS
monitoring as well as an evaluation for entry into the Mental Health Court
program; (ii) for Attempted Strangulation, eight years of Level V incarceration,
suspended after two years for two years of Level III supervision; and (iii) for
Assault in the Third Degree, one year of Level V incarceration, suspended for one
year of Level III supervision. The maximum penalty for these charges was
fourteen years of Level V incarceration.
(3) The prosecutor stated that he did not plan to attend the review hearing.
The prosecutor did not attend the March 5, 2012 hearing. Miller’s counsel
provided the plea offer to Miller on March 5, 2012.
(4) The State made another plea offer on March 8, 2012. According to
the prosecutor, Miller had rejected the February 29, 2012 plea offer. The February
29, 2012 and March 8, 2012 plea offers were substantially similar, but the March
8, 2012 plea offer increased the recommendation of non-suspended Level V time
for Aggravated Menacing from one year to two years and provided that the two
years of probation for Attempted Strangulation would be consecutive rather than
2 concurrent. The State indicated that the March 8, 2012 plea offer had to be
accepted by March 14, 2012. The State also stated that if Miller did not accept the
plea offer by March 14, 2012, it would return to the grand jury and seek an
indictment against Miller for Breach of Conditions of Bail During Commitment
and Tampering with a Witness based upon multiple letters Miller had sent to his
wife in violation of the no contact order.
(5) Miller’s counsel did not communicate the plea offer to Miller because
he had concerns regarding Miller’s mental health and he did not approve of the
short deadline for acceptance set by the prosecutor. On March 13, 2012, Miller’s
counsel informed the prosecutor that he would not be responding to the plea offer
by March 14, 2012, but would discuss it with his client and get back to him. On
March 15, 2012, Miller’s counsel filed a Motion for Mental Examination. On
March 19, 2012, the grand jury issued a superseding indictment. In addition to the
original charges, the indictment added eighteen counts of Breach of Conditions of
Bail During Commitment and seven counts of Tampering with a Witness.
(6) On March 25, 2012, the Superior Court granted the Motion for Mental
Examination. Miller was evaluated by the Delaware Psychiatric Center (“DPC”).
DPC determined that Miller was competent to stand trial.
(7) On June 20, 2012, Miller pled guilty to Aggravated Menacing,
Assault in the Third Degree, and one count of Breach of Conditions of Bail During
3 Commitment. The maximum penalty for these charges was eleven years of Level
V incarceration. In exchange for Miller’s guilty plea, the State agreed to enter a
nolle prosequi on the remaining charges. The State and Miller also agreed to
recommend determination of the sentence after a presentence investigation and an
evaluation by the Treatment Access Center (“TASC”) for possible entry into the
Mental Health Court program.
(8) On August 23, 2012, Miller was sentenced as follows: (i) for Breach
of Conditions of Bail During Commitment, five years of Level V incarceration
with credit for 294 days served and without benefit of any form of early release;
(ii) for Aggravated Menacing, five years of Level V incarceration, suspended for
five years of Level III supervision; and (iii) for Assault in the Third Degree, one
year of Level V incarceration, suspended for one year of Level III supervision.
The Superior Court judge did not place Miller in the Mental Health Court program
because he was concerned by the violent acts Miller had committed against his
wife and his violations of the no contact order. Miller did not appeal.
(9) On November 25, 2013, Miller filed his first motion for post-
conviction relief. Miller claimed his counsel was ineffective for: (i) failing to
argue mental health issues and failing to appeal the Superior Court’s refusal to
place Miller in the Mental Health Court program; (ii) not allowing or allowing
Miller to address the Superior Court; and (iii) not calling his wife to testify
4 regarding the charges. The Superior Court appointed counsel (“Postconviction
Counsel”) to represent Miller.
(10) Postconviction Counsel filed an amended motion for postconviction
relief in April 2014. In this motion, Postconviction Counsel argued that Miller’s
former counsel was ineffective during the plea bargaining process because he did
not communicate the State’s plea offers to Miller in a timely manner, depriving
Miller of the opportunity to avoid indictment on additional charges and receive
recommendations for less Level V time than the Superior Court imposed after
entry of the June 20, 2012 plea. Miller’s former counsel responded to the motion
and gave his reasons for not providing the March 8, 2012 plea offer to Miller in
March (his concerns regarding Miller’s mental health and his disapproval of the
prosecutor’s setting of an arbitrarily short deadline for response). Miller’s former
counsel stated he reviewed all of the plea offers with Miller in June. He also noted
that the June 20, 2012 plea offer represented a lower maximum penalty than the
prior plea offers (eleven years versus fourteen years) and did not contain a
recommendation for any Level V time (instead of recommended Level V time of
three years or four years).
(11) On June 30, 2014, the Superior Court denied Miller’s motion for
postconviction relief. The Superior Court did not address the claims raised by
Miller in his November 25, 2013 motion because they were not included in the
5 amended motion for postconviction relief filed by Postconviction Counsel. After
considering the merits of the ineffective assistance of counsel claim, the Superior
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IN THE SUPREME COURT OF THE STATE OF DELAWARE
JEROME T. MILLER, § § Defendant Below, § No. 379, 2014 Appellant, § § Court Below—Superior Court v. § of the State of Delaware, § in and for Sussex County STATE OF DELAWARE, § Cr. ID No. 1110012379 § Plaintiff Below, § Appellee. §
Submitted: October 22, 2014 Decided: December 9, 2014
Before HOLLAND, RIDGELY, and VALIHURA, Justices.
ORDER
This 9th day of December 2014, upon consideration of the appellant's
Supreme Court Rule 26(c) brief, the State's response, and the record below, it
appears to the Court that:
(1) In January 2012, the appellant, Jerome Miller, was indicted for
Aggravated Menacing, Possession of a Deadly Weapon During the Commission of
a Felony (“PDWDCF”), Attempted Strangulation, and Assault in the Third Degree.
These charges arose from Miller’s October 18, 2011 attack on his then-wife.
Miller was ordered not to contact his wife as part of his bail conditions.
(2) On February 29, 2012, in anticipation of a March 5, 2012 case review,
the State made a plea offer. Under the February 29, 2012 plea offer, Miller would plead guilty to Aggravated Menacing, Attempted Strangulation, and Assault in the
Third Degree and the State would agree to enter a nolle prosequi on the remaining
charges. The State and Miller would also agree to recommend the following
sentence: (i) for Aggravated Menacing, five years of Level V incarceration,
suspended after one year for two years of Level III supervision with GPS
monitoring as well as an evaluation for entry into the Mental Health Court
program; (ii) for Attempted Strangulation, eight years of Level V incarceration,
suspended after two years for two years of Level III supervision; and (iii) for
Assault in the Third Degree, one year of Level V incarceration, suspended for one
year of Level III supervision. The maximum penalty for these charges was
fourteen years of Level V incarceration.
(3) The prosecutor stated that he did not plan to attend the review hearing.
The prosecutor did not attend the March 5, 2012 hearing. Miller’s counsel
provided the plea offer to Miller on March 5, 2012.
(4) The State made another plea offer on March 8, 2012. According to
the prosecutor, Miller had rejected the February 29, 2012 plea offer. The February
29, 2012 and March 8, 2012 plea offers were substantially similar, but the March
8, 2012 plea offer increased the recommendation of non-suspended Level V time
for Aggravated Menacing from one year to two years and provided that the two
years of probation for Attempted Strangulation would be consecutive rather than
2 concurrent. The State indicated that the March 8, 2012 plea offer had to be
accepted by March 14, 2012. The State also stated that if Miller did not accept the
plea offer by March 14, 2012, it would return to the grand jury and seek an
indictment against Miller for Breach of Conditions of Bail During Commitment
and Tampering with a Witness based upon multiple letters Miller had sent to his
wife in violation of the no contact order.
(5) Miller’s counsel did not communicate the plea offer to Miller because
he had concerns regarding Miller’s mental health and he did not approve of the
short deadline for acceptance set by the prosecutor. On March 13, 2012, Miller’s
counsel informed the prosecutor that he would not be responding to the plea offer
by March 14, 2012, but would discuss it with his client and get back to him. On
March 15, 2012, Miller’s counsel filed a Motion for Mental Examination. On
March 19, 2012, the grand jury issued a superseding indictment. In addition to the
original charges, the indictment added eighteen counts of Breach of Conditions of
Bail During Commitment and seven counts of Tampering with a Witness.
(6) On March 25, 2012, the Superior Court granted the Motion for Mental
Examination. Miller was evaluated by the Delaware Psychiatric Center (“DPC”).
DPC determined that Miller was competent to stand trial.
(7) On June 20, 2012, Miller pled guilty to Aggravated Menacing,
Assault in the Third Degree, and one count of Breach of Conditions of Bail During
3 Commitment. The maximum penalty for these charges was eleven years of Level
V incarceration. In exchange for Miller’s guilty plea, the State agreed to enter a
nolle prosequi on the remaining charges. The State and Miller also agreed to
recommend determination of the sentence after a presentence investigation and an
evaluation by the Treatment Access Center (“TASC”) for possible entry into the
Mental Health Court program.
(8) On August 23, 2012, Miller was sentenced as follows: (i) for Breach
of Conditions of Bail During Commitment, five years of Level V incarceration
with credit for 294 days served and without benefit of any form of early release;
(ii) for Aggravated Menacing, five years of Level V incarceration, suspended for
five years of Level III supervision; and (iii) for Assault in the Third Degree, one
year of Level V incarceration, suspended for one year of Level III supervision.
The Superior Court judge did not place Miller in the Mental Health Court program
because he was concerned by the violent acts Miller had committed against his
wife and his violations of the no contact order. Miller did not appeal.
(9) On November 25, 2013, Miller filed his first motion for post-
conviction relief. Miller claimed his counsel was ineffective for: (i) failing to
argue mental health issues and failing to appeal the Superior Court’s refusal to
place Miller in the Mental Health Court program; (ii) not allowing or allowing
Miller to address the Superior Court; and (iii) not calling his wife to testify
4 regarding the charges. The Superior Court appointed counsel (“Postconviction
Counsel”) to represent Miller.
(10) Postconviction Counsel filed an amended motion for postconviction
relief in April 2014. In this motion, Postconviction Counsel argued that Miller’s
former counsel was ineffective during the plea bargaining process because he did
not communicate the State’s plea offers to Miller in a timely manner, depriving
Miller of the opportunity to avoid indictment on additional charges and receive
recommendations for less Level V time than the Superior Court imposed after
entry of the June 20, 2012 plea. Miller’s former counsel responded to the motion
and gave his reasons for not providing the March 8, 2012 plea offer to Miller in
March (his concerns regarding Miller’s mental health and his disapproval of the
prosecutor’s setting of an arbitrarily short deadline for response). Miller’s former
counsel stated he reviewed all of the plea offers with Miller in June. He also noted
that the June 20, 2012 plea offer represented a lower maximum penalty than the
prior plea offers (eleven years versus fourteen years) and did not contain a
recommendation for any Level V time (instead of recommended Level V time of
three years or four years).
(11) On June 30, 2014, the Superior Court denied Miller’s motion for
postconviction relief. The Superior Court did not address the claims raised by
Miller in his November 25, 2013 motion because they were not included in the
5 amended motion for postconviction relief filed by Postconviction Counsel. After
considering the merits of the ineffective assistance of counsel claim, the Superior
Court concluded that Miller’s former counsel had legitimate concerns regarding
Miller’s mental competency and that he would have acted unprofessionally if he
had jumped on the March 8, 2012 offer while he had concerns about his client’s
competency. The Superior Court also found that Miller could not show any
prejudice because the Court, not the parties, decides the appropriate sentence. This
appeal followed.
(12) On appeal, Postconviction Counsel (“Postconviction Counsel”) filed a
brief and a motion to withdraw under Supreme Court Rule 26(c) (“Rule 26(c)”).
Postconviction Counsel asserts that, based upon a complete and careful
examination of the record, there are no arguably appealable issues. Postconviction
Counsel informed Miller of the provisions of Rule 26(c) and provided Miller with
a copy of the motion to withdraw and the accompanying brief. Postconviction
Counsel also informed Miller of his right to identify any points he wished this
Court to consider on appeal. Miller has raised several issues for this Court’s
consideration. The State has responded to the issues raised by Miller and asked
this Court to affirm the Superior Court's judgment.
(13) 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
6 conscientious examination of the record and the law for arguable claims; and (ii)
must 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
(14) On appeal, Miller argues that: (i) the Superior Court should have
placed him in the Mental Health Court program and he would like to receive
treatment at DPC; (ii) he was not in the “right state of mind at the time of the
crime;”2 (iii) he thinks his mental health impacted his plea and sentencing; and (iv)
his former counsel did not argue his mental illness. Miller does not raise the issue
argued by Postconviction Counsel in the Superior Court.
(15) In considering Miller’s claims of error, this Court reviews the
Superior Court’s denial of postconviction relief for abuse of discretion and
questions of law de novo.3 The Court must consider the procedural requirements
of Superior Court Criminal Rule 61 (“Rule 61”) before addressing any substantive
issues.4 Applying the procedural requirements of Rule 61(i), Miller’s motion for
postconviction relief was untimely because it was filed more than a year after his
1 Penson v. Ohio, 488 U.S. 75, 83 (1988); Leacock v. State, 690 A.2d 926, 927-28 (Del. 1996). 2 Appendix to Appellant’s Brief Pursuant to Rule 26(c) at A108. 3 Dawson v. State, 673 A.2d 1186, 1190 (Del. 1996). 4 Younger v. State, 580 A.2d 552, 554 (Del. 1990).
7 conviction became final.5 Miller was sentenced on August 23, 2012. Miller did
not file a direct appeal and therefore his conviction became final on September 24,
2012. Miller filed his first motion for postconviction relief on November 20, 2013,
more than a year after his conviction became final.
(16) Miller does not identify any retroactively applicable right that was
newly recognized after his conviction became final or that the Superior Court
lacked jurisdiction, so he can only overcome the procedural bar of Rule 61(i)(1) if
he pleads a colorable claim of a miscarriage of justice because of a constitutional
violation that undermined the fairness of the proceedings.6 None of the claims
raised by Miller state a colorable claim of a miscarriage of justice. First, Miller did
not have a right to acceptance in the Mental Health Court program. Defendants
charged with domestic violence are not eligible for the Mental Health Court
program.7 Miller was charged with, and pled guilty to, crimes involving domestic
violence.
5 Super. Ct. Crim. R. 61(i)(1) (“A motion for postconviction relief may not be filed more than one year after the judgment of conviction is final, or if it asserts a retroactively applicable right that is newly recognized after the judgment of conviction is final, more than one year after the right is first recognized by the Supreme Court of Delaware or by the United States Supreme Court.”). 6 Super. Ct. Crim. R. 61(i)(5) (providing that Rule 61(i)(1) does not apply to claim that court lacked jurisdiction or colorable claim of miscarriage of justice). 7 http://courts.delaware.gov/superior/mental_health.stm (“Not eligible for the program are defendants charged with sex offenses, homicide, domestic violence, weapons offenses, or offenses involving serious bodily injury.”)
8 (17) To the extent Miller is challenging his sentence, this claim is without
merit. “Appellate review of a sentence is limited to whether the sentence is within
the statutory limits prescribed by the General Assembly and whether it is based on
factual predicates which are false, impermissible, or lack minimal reliability,
judicial vindictiveness or bias, or a closed mind.”8 In this case, Miller pled guilty
to three crimes carrying a maximum statutory penalty of eleven years of
incarceration. Miller was sentenced to a total of eleven years of incarceration,
suspended after five years. This sentence does not exceed the statutory limits.
(18) Miller’s conclusory allegations that he was not in his right state of
mind when he attacked his former wife and that he thinks his mental health
impacted his guilty plea and sentencing fail to state a colorable claim of a
miscarriage of justice. DPC determined that Miller was competent to stand trial.
During the plea colloquy, Miller told the Superior Court that he understood the
charges he was pleading guilty to, he was guilty of the charges, he understood that
he faced a maximum penalty of eleven years in prison, he understood that he was
waiving his right to defend himself at trial, and he had no questions or problems
that he wished to raise with the Superior Court.
(19) The transcript of the plea colloquy does not reflect that Miller was
unable to answer or had any difficulty answering the Superior Court’s questions.
8 Weston v. State, 832 A.2d 742, 746 (Del. 2003).
9 Absent clear and convincing evidence to the contrary, Miller is bound by his
representations to the judge during the guilty plea colloquy.9 There is no clear and
convincing evidence that Miller’s mental health rendered his guilty plea
unknowing or involuntary. A knowing and voluntary guilty plea waives any
defenses Miller might have had.10
(20) Finally, the record does not support Miller’s claim that his former
counsel did not argue his mental health. Miller’s former counsel had concerns
regarding Miller’s mental health and successfully obtained a mental health
examination of Miller. The guilty plea negotiated with the State included a
recommendation that Miller be evaluated by TASC for possible entry into the
Mental Health Court program. Miller’s former counsel raised Miller’s mental
health at the plea hearing and sentencing hearing, asked the Court consider Miller’s
mental health in sentencing him, and requested that Miller be entered into the
(21) This Court has reviewed the record carefully and has concluded that
Miller’s appeal is wholly without merit and devoid of any arguably appealable
issue. We also are satisfied that Postconviction Counsel has made a conscientious
9 Somerville v. State, 703 A.2d 629, 632 (Del. 1997). 10 Anderson v. State, 2014 WL 3511717, at *2 (Del. July 14, 2014); Miller v. State, 840 A.2d 1229, 1232 (Del. 2003).
10 effort to examine the record and the law and has properly determined that Miller
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/ Henry duPont Ridgely Justice