Submitted July 30, 2014
Case Closed September 25, 2014.
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 New Castle County. Cr. ID No. 1202018860.
Before HOLLAND, RIDGELY, and VALIHURA, Justices.
Randy J. Holland, Justice
This 9th day of September 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) On December 11, 2012, the appellant, Michael Selby, pled guilty to Assault in the First Degree and Possession of a Firearm During the Commission of a Felony. Although not reflected on the docket, Selby appears to have submitted a pro se motion to withdraw his guilty plea in January 2013. On March 7, 2013, Selby's counsel filed a motion to withdraw the guilty plea and to withdraw as counsel. The Superior Court denied the motion on April 25, 2013. New counsel was assigned to represent Selby and filed a motion to withdraw the guilty plea on July 19, 2013. The Superior Court denied the second motion to withdraw the guilty plea on October 15, 2013, finding there was no procedural default in the plea proceedings, Selby knowingly and voluntarily entered the plea, his assertion of innocence was contrary to his statements at the plea colloquy and the evidence, his counsel advocated for him, and allowing withdrawal of the plea would result in a trial years after the shooting that led to the charges and prejudice the State. On January 31, 2014 Selby was sentenced as follows: (i) for Assault in the First Degree, fifteen years of Level V incarceration, suspended after seven years for decreasing levels of supervision; and (ii) for Possession of a Firearm During the Commission of a Felony, three years of Level V incarceration. This is Selby's direct appeal.
(2) On appeal, Selby's counsel (" Counsel" ) filed a brief and a motion to withdraw under Supreme Court Rule 26(c) (" 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 Selby of the provisions of Rule 26(c) and provided Selby with a copy of the motion to withdraw and the accompanying brief. Counsel also informed Selby of his right to identify any points he wished this Court to consider on appeal. Selby has raised several issues for this Court's consideration. The State has responded to the issues raised by Selby and asked this Court to affirm the Superior Court's judgment.
(3) 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 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.
(4) On appeal, Selby argues that the Superior Court erred in denying his motions to withdraw his guilty plea because his guilty plea was coerced and involuntary. In support of this argument, Selby claims that: (i) the transcript of the plea hearing reflects a pause during which he told his counsel that he did not want to accept the plea and his counsel told him not to say anything; (ii) the Superior Court judge who accepted his guilty plea prefers pleas to trials; and (iii) the yes and no boxes on the Truth-In-Sentencing Guilty Plea form asking if anyone had threatened or forced him to enter the plea were not marked. Selby also claims that his plea agreement was not fulfilled.
(5) We review the Superior Court's denial of Selby's motion to withdraw his guilty plea for abuse of discretion. Upon moving to withdraw his guilty plea, Selby had the burden of establishing a fair and just reason to permit withdrawal of the plea. Withdrawal of the plea should only be permitted " where the judge determines 'the plea was not voluntarily entered or was entered because of misapprehension or mistake of defendant as to his legal rights.'" 
(6) The transcript of the plea colloquy reflects that Selby told the Superior Court he freely and voluntarily pled guilty to the charges listed in the plea agreement, he was pleading guilty because he was guilty, nobody threatened or forced him to accept the guilty plea, he understood the consequences of pleading guilty, he had sufficient time to discuss the case, possible defenses, and the plea agreement with his counsel, and he was satisfied with his counsel's representation. Similarly, Selby indicated in the Truth-In-Sentencing Guilty Plea form that he had freely and voluntarily decided to plead guilty and that he ...