INNOCENT E. ROGERS, Defendant Below-Appellant,
STATE OF DELAWARE, Plaintiff Below-Appellee.
Submitted: September 11, 2018
Below: Superior Court of the State of Delaware Cr. ID
STRINE, Chief Justice; VALIHURA and VAUGHN, Justices.
L. Valihura Justice.
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:
November 7, 2017, the defendant-appellant, Innocent E.
Rogers, entered a no contest plea to one count of Dealing in
Child Pornography and three counts of Possession of Child
Pornography. After accepting his plea, the Superior Court
revoked Rogers' bail, deferred sentencing, and ordered a
presentence investigation. Before sentencing, Rogers moved to
withdraw his plea. On March 23, 2018, the Superior Court
denied Rogers' motion and sentenced him to a total period
of thirty-four years at Level V incarceration to be suspended
after serving two years in prison for a period of probation.
This is Rogers' direct appeal.
Rogers' counsel has filed a brief and a motion to
withdraw under Supreme Court 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 Rogers of the provisions of Rule 26(c) and
provided him with a copy of the motion to withdraw, the
accompanying brief and the transcript of the guilty plea
colloquy. Rogers also was informed of his right to supplement
his attorney's presentation. Rogers raises several issues
for this Court's consideration. The State has responded
to the position taken by Rogers' counsel as well as to
the issues raised by Rogers and has moved to affirm the
Superior Court's judgment.
standard and scope of review applicable to the consideration
of a 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.
transcript of Rogers' plea colloquy reflects that Rogers
was charged with twenty-five counts of Dealing in Child
Pornography, which is a Class B felony punishable by a prison
sentence of two to twenty-five years. In exchange for Rogers'
plea of no contest to one count of Dealing in Child
Pornography and three counts of the lesser-included Class F
felony of Possession of Child Pornography, the State agreed
to dismiss the remaining charges. Rogers informed the trial
court that he was pleading no contest because the State had
sufficient evidence against him. He stated that no one had
coerced him into pleading guilty and that no one had promised
him what his sentence would be. He further acknowledged all
of the rights that he was waiving by pleading guilty.
Rogers fairly raises two issues for the Court's
consideration on appeal. First, he contends that his trial
counsel was ineffective. Second, he claims that the Superior
Court abused its discretion by denying his motion to withdraw
his guilty plea. We address only this second claim because a
claim of ineffective assistance of counsel is not one that we
will consider for the first time on direct
review the Superior Court's denial of Rogers' motion
to withdraw his plea for abuse of discretion. Upon moving to
withdraw his guilty plea, Rogers had the burden to establish
a fair and just reason to permit withdrawal. A judge should
permit withdrawal of a plea only if the judge determines that
"the plea was not voluntarily entered or was entered
because of misapprehension or mistake of defendant as to his
legal rights." Here, the record unequivocally establishes
that Rogers entered his plea voluntarily and that he was not
operating under any misapprehension or mistake as to his
legal rights. Under the circumstances, we find no abuse
of the Superior Court's discretion in denying Rogers'
motion to withdraw his guilty plea.
Court has reviewed the record carefully and has concluded
that Rogers' appeal is wholly without merit and devoid of
any arguably appealable issue. We also are satisfied that
Rogers' counsel has made a conscientious effort to
examine the record and has properly determined that Rogers
could not raise a meritorious claim in this appeal.
THEREFORE, IT IS ORDERED that the State's motion to
affirm is GRANTED. The judgment of the Superior Court is