Submitted: May 28, 2015.
Court Below – Superior Court of the State of Delaware in and for New Castle County Cr. ID No. 1311017538
Before HOLLAND, VALIHURA and VAUGHN, Justices.
KAREN L. VALIHURA, JUSTICE.
This 30th day of July 2015, upon consideration of the appellant's brief filed 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) The appellant, Alfred Maurice Lewis, Jr., is incarcerated at the James T. Vaughn Correctional Center. While incarcerated on November 21, 2013, Lewis was found to be in possession of a cell phone and a cell phone charger. Lewis was arrested and indicted on two counts of Promoting Prison Contraband.
(2) On June 5, 2014, Lewis pled guilty to both counts of Promoting Prison Contraband. At the guilty plea proceeding, the State noted that it would be filing a motion to declare Lewis a habitual offender.
(3) On July 17, 2014, the State filed a motion to declare Lewis a habitual offender based on Lewis' 1997 guilty plea on a charge of Receiving Stolen Property, 2002 guilty plea on a charge of a Burglary in the Second Degree, and 2011 guilty plea on Assault in the Second Degree as a lesser included offense of Attempted Murder in the First Degree. Lewis did not oppose the habitual offender motion. At sentencing on August 29, 2014, the Superior Court declared Lewis a habitual offender under 11 Del. C. § 4214(a) and sentenced him to a total of six months at Level V, ninety days for each conviction of Promoting Prison Contraband. This is Lewis' direct appeal.
(4) On appeal, Lewis' appellate counsel ("Counsel") has 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. Lewis has submitted several claims for the Court's consideration. The State has responded to Lewis' claims and has moved to affirm the Superior Court's judgment.
(5) When reviewing a motion to withdraw and an accompanying brief under Rule 26(c), this Court must be satisfied that Counsel has made a conscientious examination of the record and the law for arguable claims. The Court must also conduct its own review of the record and determine "whether the appeal is indeed so frivolous that it may be decided without an adversary presentation."
(6) On appeal, Lewis contends that his indictment for two counts of Promoting Prison Contraband constituted "multiplicity, " or the charging of a single offense in more than one count of the indictment, and subjected him to impermissible selective prosecution. Also, Lewis contends that the Superior Court violated his right to due process when, in April 2014, it did not rule on his pro se "motion to dismiss or merge counts of indictment" but instead referred the motion to his defense counsel under Superior Court Criminal Rule 47. Lewis' claims were not raised in the Superior Court proceedings. Our review is limited to plain error.
(7) Lewis' claims of defects or errors in the indictment were all waived by the entry of his guilty plea on June 4, 2014. Lewis cannot demonstrate plain error with respect to his indictment for two counts of Promoting Prison Contraband.
(8) Lewis claims that the Superior Court should have applied a recent amendment of 11 Del. C. § 3901(d) when sentencing him on August 29, 2014.We have reviewed the claim for plain error and have found none. Lewis was properly sentenced under the version of Section 3901(d) in effect on November 21, 2013, the date of the offenses.
(9) Lewis claims that the predicate convictions supporting the State's habitual offender motion did not satisfy the statutory requirements of 11 Del. C. § 4214(a). We have reviewed the claim for plain error and have found none. Delaware law provides that it is the State's burden to establish that each predicate offense meets the requirements of the habitual offender statute beyond a reasonable doubt. Moreover, when moving to declare a defendant to be a habitual offender under Section 4214(a), the State must establish that a defendant had some chance of rehabilitation following the sentencing on each prior conviction. "Some chance of rehabilitation" requires a "specified number of separate encounters with the criminal justice system and a corresponding number of chances to reform."In this case, the record reflects that, in its ...