Rogers v. State

• Court: Supreme Court of Delaware
• Decided: November 8, 2018
• Docket: 195, 2018
• Status: Published

Opinion

IN THE SUPREME COURT OF THE STATE OF DELAWARE

INNOCENT E. ROGERS, § § No. 195, 2018 Defendant Below- § Appellant, § § Court Below: Superior Court v. § of the State of Delaware § STATE OF DELAWARE, § Cr. ID N1703019541 § Plaintiff Below- § Appellee. §

Submitted: September 11, 2018 Decided: November 8, 2018

Before STRINE, Chief Justice; VALIHURA and VAUGHN, Justices

ORDER

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

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

to the Court that:

(1) On November 7, 2017, the defendant-appellant, Innocent E. Rogers,

entered a no contest plea to one count of Dealing in Child Pornography and three

counts of Possession of Child Pornography. After accepting his plea, the Superior

Court revoked Rogers’ bail, deferred sentencing, and ordered a presentence

investigation. Before sentencing, Rogers moved to withdraw his plea. On March

23, 2018, the Superior Court denied Rogers’ motion and sentenced him to a total period of thirty-four years at Level V incarceration to be suspended after serving two

years in prison for a period of probation. This is Rogers’ direct appeal.

(2) Rogers’ counsel has 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. By letter, counsel

informed Rogers of the provisions of Rule 26(c) and provided him with a copy of

the motion to withdraw, the accompanying brief and the transcript of the guilty plea

colloquy. Rogers also was informed of his right to supplement his attorney’s

presentation. Rogers raises several issues for this Court’s consideration. The State

has responded to the position taken by Rogers’ counsel as well as to the issues raised

by Rogers and has moved to affirm the Superior Court’s judgment.

(3) The standard and scope of review applicable to the consideration of a

motion to withdraw and an accompanying brief under Rule 26(c) is twofold: a) the

Court must be satisfied that defense counsel has made a conscientious examination

of the record and the law for claims that could arguably support the appeal; and b)

the Court must conduct its own review of the record in order to determine whether

the appeal is so totally devoid of at least arguably appealable issues that it can be

decided without an adversary presentation.1

1 Penson v Ohio, 488 U.S. 75, 83 (1988); McCoy v. Court of Appeals of Wisconsin, 486 U.S. 429, 442 (1988); Anders v. California, 386 U.S. 738, 744 (1967).

2 (4) The transcript of Rogers’ plea colloquy reflects that Rogers was

charged with twenty-five counts of Dealing in Child Pornography, which is a Class

B felony punishable by a prison sentence of two to twenty-five years.2 In exchange

for Rogers’ plea of no contest to one count of Dealing in Child Pornography and

three counts of the lesser-included Class F felony of Possession of Child

Pornography, the State agreed to dismiss the remaining charges. Rogers informed

the trial court that he was pleading no contest because the State had sufficient

evidence against him. He stated that no one had coerced him into pleading guilty

and that no one had promised him what his sentence would be. He further

acknowledged all of the rights that he was waiving by pleading guilty.

(5) Rogers fairly raises two issues for the Court’s consideration on appeal.

First, he contends that his trial counsel was ineffective. Second, he claims that the

Superior Court abused its discretion by denying his motion to withdraw his guilty

plea. We address only this second claim because a claim of ineffective assistance of

counsel is not one that we will consider for the first time on direct appeal.3

(6) We review the Superior Court’s denial of Rogers’ motion to withdraw

his plea for abuse of discretion.4 Upon moving to withdraw his guilty plea, Rogers

2 See 11 Del. C. § 1109(4) (Dealing in Child Pornography a Class B felony); 11 Del. C. § 4205(b)(2) (Class B felony punishable by prison sentence of two to twenty-five years). 3 Johnson v. State, 962 A.2d 233, 234 (Del. 2008). 4 Chavous v. State, 953 A.2d 282, 285 (Del. 2008).

3 had the burden to establish a fair and just reason to permit withdrawal. 5 A judge

should permit withdrawal of a plea only if the judge determines that “the plea was

not voluntarily entered or was entered because of misapprehension or mistake of

defendant as to his legal rights.”6 Here, the record unequivocally establishes that

Rogers entered his plea voluntarily and that he was not operating under any

misapprehension or mistake as to his legal rights.7 Under the circumstances, we find

no abuse of the Superior Court's discretion in denying Rogers’ motion to withdraw

his guilty plea.

(7) The Court has reviewed the record carefully and has concluded that

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

We also are satisfied that Rogers’ counsel has made a conscientious effort to

examine the record and has properly determined that Rogers could not raise a

meritorious claim in this appeal.

NOW, THEREFORE, IT IS ORDERED that the State’s motion to affirm is

GRANTED. The judgment of the Superior Court is AFFIRMED. The motion to

withdraw is moot.

BY THE COURT:

/s/ Karen L. Valihura Justice

5 Del. Super. Ct. Crim. R. 32(d). 6 Scarborough v. State, 938 A.2d 644, 650 (Del. 2007). 7 See Somerville v. State, 703 A.2d 629, 632 (Del. 1997).