IN THE SUPREME COURT OF THE STATE OF DELAWARE
RICHARD WHITE, § § No. 300, 2018 Defendant Below- § Appellant, § § v. § Court Below—Superior Court § of the State of Delaware STATE OF DELAWARE, § § ID. No. N1703022008 Plaintiff Below- § Appellee. §
Submitted: October 9, 2018 Decided: November 21, 2018
Before VALIHURA, VAUGHN, and SEITZ, 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 September 5, 2017, a New Castle County grand jury indicted
the appellant, Richard White, on eleven counts of Rape in the Second Degree,
six counts of Possession of Child Pornography, four counts of Sexual
Exploitation of a Child, one count of Continuous Sexual Abuse of a Child,
one count of Committing a Dangerous Crime Against a Child, one count of
Sexual Solicitation of a Child, and one count of Dealing in Child Pornography.
The charges arose after the victim reported to a coach that she had been in a five-year sexual relationship with White that started when she was only
twelve-years-old. On January 16, 2018, White pled guilty to one count of
Rape in the Second Degree. In exchange for his plea, the State dismissed the
other charges. After a presentence investigation, the Superior Court sentenced
White on May 18, 2018 to life imprisonment. This is White’s direct appeal.
(2) White’s 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. By
letter, counsel informed White of the provisions of Rule 26(c) and gave him
a copy of the motion to withdraw and the accompanying brief and appendix.
White also was informed of his right to supplement counsel’s presentation.
(3) In response to his counsel’s motion to withdraw, White raises
eight issues for the Court’s consideration. First, he contends that the
indictment was defective. Second, he contends that his written plea agreement
was defective for failing to specify the statutory subsection to which he was
pleading guilty. Third, he contends that the child pornography charges in the
indictment were not supported by the evidence. Fourth, he contends that he
was never provided with a copy of the victim’s statement to police. Fifth, he
asserts that the presentence investigation report was the result of bias. Sixth,
he contends that his counsel was ineffective for failing to have him undergo a
2 psycho-forensic evaluation. Seventh, he contends that trial counsel was
ineffective for failing to inform him that a life sentence was really possible,
for not filing a motion to withdraw his guilty plea, and for failing to advocate
for him at sentencing. Finally, he contends that his sentence is
disproportionate compared to other second degree rape cases.
(4) The standard and scope of review applicable to the consideration
of defense counsel’s 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
(5) With the exception of his sentencing-related claims and his
ineffective assistance of counsel claims, which we decline to consider for the
first time in this direct appeal,2 the disposition of White’s remaining claims
hinges on the Court’s determination of whether White entered his guilty plea
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 Sahin v. State, 7 A.3d 450, 451 (Del. 2010) (claims of ineffective assistance generally are not considered for the first time on direct appeal). 3 knowingly, intelligently, and voluntarily.3 It is well-settled that a knowing
and voluntary guilty plea waives a defendant’s right to challenge any errors
occurring before the entry of the plea, “even those of constitutional
dimensions.”4
(6) In this case, the record supports the conclusion that White
knowingly, intelligently, and voluntarily pled guilty with a full understanding
of the rights he was waiving. The judge engaged in a colloquy with White in
open court. Under oath, White informed the judge that he understood the
charge against him and that he was pleading guilty because he was, in fact,
guilty. He told the judge that he had not taken any medication or drugs in the
preceding 24 hours that would prevent his understanding of the plea
proceeding. He indicated that he had reviewed the guilty plea agreement and
that he understood its meaning and all of the rights that he was waiving by
entering a guilty plea. White also told the judge that no one was forcing him
to plead guilty and that he was satisfied with his counsel’s representation.
White stated under oath that he understood that, because the victim was a child
under the age of 14, he was facing a minimum sentence of 25 years and a
maximum sentence of life in prison. His signature on the guilty plea form
3 Lewis v. State, 2010 WL 2163910, at *1 (Del. May 11, 2010). 4 Wilson v. State, 2010 WL 572114, at *2 (Del. Feb. 18, 2010) (quoting Smith v. State, 2004 WL 120530, at *1 (Del. Jan. 15, 2004)). 4 acknowledged that, despite the State’s recommendation of a 25-year sentence,
no one had promised him what his sentence would be. The judge accepted
White’s plea and, at the parties’ request, ordered a presentence investigation.
(7) Under the circumstances of this case, we conclude that White’s
knowing, intelligent, and voluntary guilty plea waived his right to challenge
the indictment, to challenge the sufficiency of the statutory citation in his
written plea agreement, to challenge any alleged discovery issues, or to
challenge the sufficiency of the State’s evidence.5 Moreover, White raised no
objection about the presentence report to the Superior Court in the first
instance, nor did he request a continuance or opportunity to rebut the report.6
In the absence of plain error, which we do not find, White has waived this
claim on appeal.7
(8) Finally, with respect to his claim that his life sentence is
disproportionate to other second degree rape cases, our review of his sentence
is limited to determining whether the sentence is within the statutory limits
defined by the General Assembly.8 If the sentence falls within the statutory
5 Brown v. State, 108 A.3d 1201, 1202 (Del. 2015) (holding that the defendant’s valid guilty plea waived any right to challenge the strength of the State’s evidence, including the chain of custody of the drug evidence). 6 Del. Supr. Ct. R. 8. 7 Mayes v.
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IN THE SUPREME COURT OF THE STATE OF DELAWARE
RICHARD WHITE, § § No. 300, 2018 Defendant Below- § Appellant, § § v. § Court Below—Superior Court § of the State of Delaware STATE OF DELAWARE, § § ID. No. N1703022008 Plaintiff Below- § Appellee. §
Submitted: October 9, 2018 Decided: November 21, 2018
Before VALIHURA, VAUGHN, and SEITZ, 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 September 5, 2017, a New Castle County grand jury indicted
the appellant, Richard White, on eleven counts of Rape in the Second Degree,
six counts of Possession of Child Pornography, four counts of Sexual
Exploitation of a Child, one count of Continuous Sexual Abuse of a Child,
one count of Committing a Dangerous Crime Against a Child, one count of
Sexual Solicitation of a Child, and one count of Dealing in Child Pornography.
The charges arose after the victim reported to a coach that she had been in a five-year sexual relationship with White that started when she was only
twelve-years-old. On January 16, 2018, White pled guilty to one count of
Rape in the Second Degree. In exchange for his plea, the State dismissed the
other charges. After a presentence investigation, the Superior Court sentenced
White on May 18, 2018 to life imprisonment. This is White’s direct appeal.
(2) White’s 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. By
letter, counsel informed White of the provisions of Rule 26(c) and gave him
a copy of the motion to withdraw and the accompanying brief and appendix.
White also was informed of his right to supplement counsel’s presentation.
(3) In response to his counsel’s motion to withdraw, White raises
eight issues for the Court’s consideration. First, he contends that the
indictment was defective. Second, he contends that his written plea agreement
was defective for failing to specify the statutory subsection to which he was
pleading guilty. Third, he contends that the child pornography charges in the
indictment were not supported by the evidence. Fourth, he contends that he
was never provided with a copy of the victim’s statement to police. Fifth, he
asserts that the presentence investigation report was the result of bias. Sixth,
he contends that his counsel was ineffective for failing to have him undergo a
2 psycho-forensic evaluation. Seventh, he contends that trial counsel was
ineffective for failing to inform him that a life sentence was really possible,
for not filing a motion to withdraw his guilty plea, and for failing to advocate
for him at sentencing. Finally, he contends that his sentence is
disproportionate compared to other second degree rape cases.
(4) The standard and scope of review applicable to the consideration
of defense counsel’s 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
(5) With the exception of his sentencing-related claims and his
ineffective assistance of counsel claims, which we decline to consider for the
first time in this direct appeal,2 the disposition of White’s remaining claims
hinges on the Court’s determination of whether White entered his guilty plea
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 Sahin v. State, 7 A.3d 450, 451 (Del. 2010) (claims of ineffective assistance generally are not considered for the first time on direct appeal). 3 knowingly, intelligently, and voluntarily.3 It is well-settled that a knowing
and voluntary guilty plea waives a defendant’s right to challenge any errors
occurring before the entry of the plea, “even those of constitutional
dimensions.”4
(6) In this case, the record supports the conclusion that White
knowingly, intelligently, and voluntarily pled guilty with a full understanding
of the rights he was waiving. The judge engaged in a colloquy with White in
open court. Under oath, White informed the judge that he understood the
charge against him and that he was pleading guilty because he was, in fact,
guilty. He told the judge that he had not taken any medication or drugs in the
preceding 24 hours that would prevent his understanding of the plea
proceeding. He indicated that he had reviewed the guilty plea agreement and
that he understood its meaning and all of the rights that he was waiving by
entering a guilty plea. White also told the judge that no one was forcing him
to plead guilty and that he was satisfied with his counsel’s representation.
White stated under oath that he understood that, because the victim was a child
under the age of 14, he was facing a minimum sentence of 25 years and a
maximum sentence of life in prison. His signature on the guilty plea form
3 Lewis v. State, 2010 WL 2163910, at *1 (Del. May 11, 2010). 4 Wilson v. State, 2010 WL 572114, at *2 (Del. Feb. 18, 2010) (quoting Smith v. State, 2004 WL 120530, at *1 (Del. Jan. 15, 2004)). 4 acknowledged that, despite the State’s recommendation of a 25-year sentence,
no one had promised him what his sentence would be. The judge accepted
White’s plea and, at the parties’ request, ordered a presentence investigation.
(7) Under the circumstances of this case, we conclude that White’s
knowing, intelligent, and voluntary guilty plea waived his right to challenge
the indictment, to challenge the sufficiency of the statutory citation in his
written plea agreement, to challenge any alleged discovery issues, or to
challenge the sufficiency of the State’s evidence.5 Moreover, White raised no
objection about the presentence report to the Superior Court in the first
instance, nor did he request a continuance or opportunity to rebut the report.6
In the absence of plain error, which we do not find, White has waived this
claim on appeal.7
(8) Finally, with respect to his claim that his life sentence is
disproportionate to other second degree rape cases, our review of his sentence
is limited to determining whether the sentence is within the statutory limits
defined by the General Assembly.8 If the sentence falls within the statutory
5 Brown v. State, 108 A.3d 1201, 1202 (Del. 2015) (holding that the defendant’s valid guilty plea waived any right to challenge the strength of the State’s evidence, including the chain of custody of the drug evidence). 6 Del. Supr. Ct. R. 8. 7 Mayes v. State, 604 A.2d 839, 845 (Del. 1992) (defendant’s failure to request a continuance or opportunity to present rebuttal evidence to presentence investigation report waived any right to object to the report on appeal). 8 Kurzmann v. State, 903 A.2d 702, 714 (Del. 2006). 5 limits, we consider only whether it is based on factual predicates which are
false, impermissible, or lack a minimal indicia of reliability, judicial
vindictiveness or bias, or a closed mind.9 “A judge sentences with a closed
mind when the sentence is based on a preconceived bias without consideration
of the nature of the offense or the character of the defendant.”10
(9) In sentencing White above the State’s recommended 25-year
sentence, the Superior Court stated that it did not lightly set aside the
sentencing recommendation that had resulted from the parties’ plea
negotiations. Nonetheless, after reviewing all of the information submitted
relevant to sentencing, including the presentence investigation report, the
letters written on White’s behalf, and the nature of the offense, the Superior
Court had to exercise its independent sentencing judgment. The Superior
Court found multiple aggravating factors, including the vulnerability of the
victim and the duration of White’s sexual abuse, and concluded that any
sentence less than life imprisonment would unduly depreciate the nature and
circumstances and damage caused by White’s long-term abuse. Under these
circumstances, we conclude there was no abuse of the Superior Court’s
discretion in sentencing White to life imprisonment.
9 Id. 10 Id. (quoting Weston v. State, 832 A.2d 742, 746 (Del. 2003)). 6 (10) We have reviewed the record carefully and conclude that White’s
appeal is wholly without merit and devoid of any arguably appealable issue.
We also are satisfied that White’s counsel has made a conscientious effort to
examine the record and has properly determined that White 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/ James T. Vaughn, Jr. Justice