Submitted: October 28, 2016
Below-Superior Court of the State of Delaware Cr. ID No.
STRINE, Chief Justice; VAUGHN and SEITZ, Justices.
Collins J. Seitz, Jr. Justice.
20th day of January 2017, having considered the
appellant's brief under Supreme Court Rule 26(c), his
attorney's motion to withdraw, and the State's
response, it appears to the Court that:
May 2014, the appellant, Manuel Salaberrios, and another man,
Scott Kuntz, were incarcerated at the Central Violation of
Probation Center (CVOP) near Smyrna, Delaware. On May 19,
2014, the two men were in the CVOP's housing area during
free time when Salaberrios struck Kuntz in the face. The
incident was recorded by a CVOP security camera. Following
the incident, Kuntz was examined by a registered nurse in the
CVOP's medical unit. The nurse noted a laceration on the
inside of Kuntz' lower lip and some swelling. Kuntz told
the nurse that he was not in pain, and he declined medication
for the injury.
a result of the incident, Salaberrios was indicted in June
2014 on one count of assault in a detention facility for
having intentionally caused physical injury to
Kuntz. On December 12, 2014, a Superior Court
jury convicted Salaberrios of attempted assault in a
detention facility as a lesser-included offense of assault in
a detention facility. At sentencing on April 29, 2016, the
Superior Court declared Salaberrios a habitual offender and
sentenced him to a mandatory minimum of eight years at Level
V incarceration followed by six months at Level IV. This is
Salaberrios' direct appeal.
appeal, Salaberrios' appellate counsel has filed a
no-merit brief and a motion to withdraw under Supreme Court
Rule 26(c). Appellate counsel asserts that, based upon
a complete and careful examination of the record, there are
no arguably appealable issues in Salaberrios' case.
Appellate counsel has advised the Court that he provided
Salaberrios with a copy of the motion to withdraw, the
no-merit brief and appendix in draft form, and a letter
requesting that Salaberrios send him written points for the
Court's consideration. Salaberrios sent written points to
appellate counsel. The points are included in the brief. The
State has responded to the no-merit brief, Salaberrios'
written submission, and has moved to affirm the Superior
When reviewing a motion to withdraw and an accompanying brief
under Rule 26(c), this Court must be satisfied that the
appellant's counsel has made a conscientious examination
of the record and the law for arguable claims. Also, the Court
must 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." In this case, having conducted "a
full examination of all the proceedings" and found
"no nonfrivolous issue for appeal, " the Court is
satisfied that Salaberrios' appellate counsel made a
conscientious effort to examine the record and the law and
properly determined that Salaberrios could not raise a
meritorious claim on appeal.
record reflects that, on the first day of trial, the
prosecutor asked the Superior Court to conduct a colloquy
with Salaberrios on his decision to reject the State's
plea offer. The prosecutor also indicated that the State
would be requesting a jury instruction on attempted assault
in a detention facility as a lesser-included offense of
assault in a detention facility.
State's plea offer required Salaberrios to plead guilty
to assault in a detention facility, which has a two-year
mandatory minimum sentence of incarceration. As part of the
offer, the State agreed that it would not seek habitual
offender sentencing and that it would recommend that the
court impose no more than three years of incarceration.
Superior Court conducted a colloquy with Salaberrios about
the plea offer and the potential consequences of accepting
and rejecting the plea. At the conclusion of the colloquy,
the court took a recess to give Salaberrios extra time to
consult with his trial counsel and consider the offer. An
excerpt from the trial transcript reflects the following
Trial Judge: All right. And the State's charged you with
assault in a detention facility, and apparently thinks that
because of your criminal history, you're going to qualify
for sentencing as a habitual offender. They've told you
that, I assume; right?
Salaberrios: Yes, Your Honor.
Trial Judge: And has [your trial counsel] gone over the fact
that if you - if this trial doesn't go the way you'd
like it to go and you're convicted, the State is going to
play its card that you're habitual, and then they're
going to force me to impose an eight-year jail sentence. And
what I want to assure you of is if this doesn't go right
today, I have no discretion. Assuming you qualify for
habitual, that is, you have three prior felony convictions. .
. . I have to impose an eight-year sentence. I have no
discretion. I have no choice. . . . Okay?