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Henry v. State

Supreme Court of Delaware

June 5, 2014

JERRY HENRY, Defendant Below, Appellant,
v.
STATE OF DELAWARE, Plaintiff Below, Appellee

Submitted: April 15, 2014.

Case Closed June 13, 2014.

Editorial Note:

This decision has been designated as "Table of Decisions Without Published Opinions." in the Atlantic Reporter.

Court Below--Superior Court of the State of Delaware in and for Sussex County. Cr. ID Nos. 1204003166, 1201002933.

Before BERGER, JACOBS and RIDGELY, Justices.

OPINION

Jack B. Jacobs, Justice.

ORDER

This 5th day of June 2014, upon careful consideration of the appellant's brief pursuant to Supreme Court Rule 26(c), his attorney's motion to withdraw, and the State's response, it appears to the Court that:

(1) On September 18, 2012, the appellant, Jerry Henry (" Henry" ) pleaded guilty to Tier 5 Drug Dealing/Aggravated Possession, Attempted Robbery in the First Degree, Possession of a Firearm During the Commission of a Felony (" PFDCF" ), Conspiracy in the Second Degree, and multiple counts of Violation of Probation (" VOP" ). When imposing Henry's sentence, the Superior Court found Henry to be a habitual offender and sentenced him to fifteen years at Level V for Drug Dealing/Aggravated Possession. For Attempted Robbery, PFDCF, Conspiracy, and one count of VOP, the Superior Court sentenced Henry to a total of thirty-two years at Level V, suspended after ten years for one year of Level IV work release, followed by four years at Level III probation. Henry was discharged as unimproved on the remaining VOP counts.

(2) On June 20, 2013, Henry filed a pro se motion for postconviction relief pursuant to Superior Court Criminal Rule 61 (" Rule 61" ). Henry alleged ineffective assistance of counsel, malicious prosecution, and violations of his constitutional rights. The Superior Court appointed counsel (" Counsel" ) to represent Henry and directed that Counsel file an amended postconviction motion by October 15, 2013. The deadline was later extended to November 15, 2013, when Counsel requested, and was granted, an extension of time on the basis that he needed additional time to review the record and transcripts.

(3) On November 14, 2013, Counsel filed a motion to withdraw under Rule 61(e)(2) in lieu of an amended postconviction motion.[1] In that motion to withdraw, Counsel represented that, after conducting " a thorough and conscientious review of the record, law and allegations," he had concluded that Henry's postconviction claims were " wholly without merit," and that the record was " devoid [of] any potentially arguable issues."

(4) Under Rule 61(e)(2), Henry had a right to respond to Counsel's motion to withdraw and was advised of that right by Counsel and the Superior Court. Henry did not respond to the motion to withdraw.

(5) By order dated February 3, 2014, the Superior Court granted Counsel's motion to withdraw and denied Henry's pro se motion for ...


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