Submitted: June 7, 2015.
Court Below-Superior Court of the State of Delaware, in and for Kent County Cr. ID 1204019450
Before HOLLAND, VALIHURA, and SEITZ, Justices.
KAREN L. VALIHURA, JUSTICE.
This 30th day of July 2015, 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 January 6, 2014, after the Superior Court denied defense counsel's motion to suppress, the defendant-appellant, Edwin Scarborough, pled guilty to one count of Drug Dealing. The Superior Court immediately sentenced Scarborough, effective September 20, 2012, to a total period of fifteen years at Level V incarceration, with credit for eleven days served, to be suspended after serving three years in prison for eight months at Level IV and eighteen months at Level III probation. This is Scarborough's direct appeal.
(2) Scarborough's counsel filed a brief and a motion to withdraw under Supreme Court Rule 26(c). Counsel asserted that, based upon a complete and careful examination of the record, there are no arguably appealable issues. By letter, counsel informed Scarborough of the provisions of Rule 26(c) and gave him a copy of the motion to withdraw and the accompanying brief and appendix. Scarborough also was informed of his right to supplement counsel's presentation. Scarborough has raised eight overlapping issues for inclusion in the Rule 26(c) brief.
(3) After the State filed its response to the Rule 26(c) brief, the Court stayed further consideration of Scarborough's appeal pending the outcome of another case, Brown v. State, No. 178, 2014. The Court issued its opinion in Brown on January 23, 2015. The parties were directed to file supplemental memoranda addressing the applicability of Brown to Scarborough's case. After considering the parties' supplemental memoranda, the Court again directed the parties to file additional supplemental memoranda related to Scarborough's contention that, although his guilty plea was valid, he had not waived his right to appeal the Superior Court's denial of his suppression motion.
(4) The Superior Court record reflects that Scarborough was indicted in this case in July 2012 on charges of Drug Dealing, Endangering the Welfare of a Child, and Possession of Drug Paraphernalia. Defense counsel filed eight pre-trial motions including a motion to suppress drug evidence. A suppression hearing was held on September 4, 2013. The Superior Court denied Scarborough's suppression motion, and trial was scheduled for January 6, 2014.
(5) On the day of trial, at defense counsel's request, the Superior Court engaged in a colloquy with Scarborough about a plea offer made by the State to resolve Scarborough's current charges in Cr. ID 1204019450, as well as another set of criminal charges pending against him in Cr. ID 1208002007. Scarborough told the Superior Court that he was interested in resolving both cases but that he did not want to accept the State's offer because he was not happy with the length of the State's recommended total sentence of eight years (even though he was facing the possibility of a life sentence because of his prior criminal record). The judge informed Scarborough that he could resolve just his current case by a plea, rather than both cases together, or he could choose to go to trial on his current charges if he believed that "the suppression decision is bad." The Superior Court recessed to allow Scarborough to consult with his counsel and to reconsider the State's plea offer in light of the judge's colloquy.
(6) Upon returning from the recess, defense counsel informed the judge that he had discussed the State's plea offer with Scarborough, that Scarborough understood all the constitutional rights that he was waiving by pleading guilty, and that he knowingly and voluntarily decided to enter a guilty plea. The judge then engaged in a second colloquy with Scarborough in open court. Scarborough informed the judge that he understood the charges against him and that he was pleading guilty to Drug Dealing because he was, in fact, guilty of that offense. Scarborough stated that he had reviewed the guilty plea agreement and that he understood its meaning. Scarborough also told the judge that no one was forcing him to plead guilty, that he was not under the influence of any medications, that he had not been under the care of a psychologist in the last two years, and that he was satisfied with his counsel's representation.
(7) Scarborough told the judge that he understood the consequences of what he was doing. When asked if he had any questions, Scarborough's only question was whether the judge would allow him to be held at Level III while awaiting space in a Level IV facility. The Superior Court accepted Scarborough's plea and sentenced him in accordance with his plea agreement to fifteen years at Level V incarceration to be suspended after serving three years in prison for decreasing levels of supervision. This appeal followed.
(8) 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.
(9) In response to his counsel's motion to withdraw, Scarborough enumerated eight overlapping issues for the Court's consideration: (i) the Superior Court erred in denying his motion to suppress; (ii) the arresting officers violated the "knock and announce" rule; (iii) his arrest was pretextual; (iv) his counsel was ineffective for failing to file an interlocutory appeal from the denial of the suppression motion; (v) his counsel was ineffective for failing to interview a defense witness, who turned out to be hostile, before the suppression hearing; (vi) his counsel was ineffective because he failed to argue that his arrest was pretextual; (vii) he never waived his right to appeal the suppression ruling because he did not check "yes" or "no" to the question on his guilty plea agreement indicating that he understood he was waiving all of his trial and appeal rights by pleading guilty; and (viii) the ...