EVERETT E. SMITH, Defendant Below-Appellant,
STATE OF DELAWARE, Plaintiff Below-Appellee.
Submitted: October 5, 2018
Below-Superior Court of the State of Delaware Cr. ID No.
VAUGHN, SEITZ, and TRAYNOR, Justices.
Collins J. Seitz, Jr. Justice
consideration of the parties' briefs and the record on
appeal, it appears to the Court that:
appellant, Everett Smith, filed this appeal from the Superior
Court's order dated March 28, 2018, denying his refiled
first motion for postconviction relief under Superior Court
Criminal Rule 61. We find no merit to Smith's appeal.
Accordingly, we affirm the Superior Court's judgment.
Smith was indicted in December 2012 on criminal charges
arising from the robbery of a pizza restaurant. In March
2013, before his scheduled trial, the Superior Court granted
defense counsel's request to have Smith evaluated to
determine his competency to stand trial. Upon receipt of the
report, which was then sealed by court order, a Superior
Court Commissioner provided the parties with the report and
gave them ten days to file a motion for a competency hearing,
if a hearing was deemed to be necessary. No motion was filed.
Thereafter, a Superior Court jury convicted Smith in
September 2013 of Attempted Robbery in the Second Degree and
Criminal Mischief. The Superior Court ordered a presentence
Before sentencing, Smith's counsel requested an updated
psycho-forensic evaluation to determine Smith's
competency to be sentenced. After receiving the report, which
could offer no opinion because of Smith's refusal to
participate in the evaluation, the Superior Court sentenced
Smith as a habitual offender to a total period of seven years
and thirty days at Level V incarceration to be suspended
after serving seven years in prison for a period of
probation. In sentencing Smith, the Superior Court
specifically considered Smith's significant mental health
issues to be a mitigating factor and noted that it was
factoring Smith's mental health needs into the structure
of the sentence. This Court affirmed Smith's convictions
and sentence on direct appeal.
Smith filed a timely first motion for postconviction relief
under Superior Court Criminal Rule 61 in July 2015.
Thereafter, he filed a request for counsel and an amended
Rule 61 motion. The Superior Court appointed counsel to
represent Smith. On February 3, 2017, Smith's appointed
counsel filed a motion to withdraw from further
representation under Rule 61(e)(7), finding no ground for
relief that counsel could advocate ethically on Smith's
behalf. On February 13, 2017, Smith filed a response in
opposition to appointed counsel's contention that
Smith's case presented no grounds for relief.
March 13, 2017, Smith filed a "Motion to
Restructure." In the first sentence of his motion, Smith
stated that wanted to withdraw his Rule 61 motion. He
requested instead that the Superior Court restructure his
sentence to release him from Level V upon completion of his
minimum mandatory five-year term and allow him to receive
twenty-two months of mental health treatment either within
the prison or at the Delaware Psychiatric Center
March 30, 2017, the Superior Court, in a letter order,
acknowledged Smith's withdrawal of his Rule 61 motion
and, thus, granted his appointed counsel's motion to
withdraw. But, the Superior Court denied Smith's motion
to restructure his sentence because his request to be
relocated internally within the Department of
Correction's facilities was not within the Superior
Court's discretion to order and because Smith's
alternative request to be transferred to DPC was not
supported by any information from the Department of Health
and Social Services as required by 11 Del. C. §
406. We affirmed that decision on appeal.
Thereafter, Smith refiled his "first"
postconviction motion. Notwithstanding the withdrawal of
Smith's actual first postconviction motion in March 2017,
the Superior Court considered his refiled motion as a timely,
first postconviction motion and considered the merits of
Smith's claims. In his motion, Smith argued that his
trial counsel was ineffective because counsel: (i) failed to
file a motion to have the court open the results of DPC's
pre-trial competency evaluation; (ii) failed to file to a
motion to have the court open the results of DPC's
pre-sentencing competency evaluation; and (iii) failed to
file a pretrial motion for a competency hearing. The Superior
Court rejected all three claims on the merits.
his opening brief on appeal, Smith's sole argument is
that the Superior Court erred in denying his motion for
postconviction relief because his trial counsel was
ineffective for failing to seek an independent psychological
examination before sentencing, thus presenting mitigating
evidence that would have resulted in a different sentence.
This issue, however, was not fairly presented to the Superior
Court in his refiled postconviction motion. In the absence of
plain error, this Court will not consider any issue on appeal
that was not fairly raised and considered by the trial
court. Plain error exists when the error
complained of is apparent on the face of the record and is so
prejudicial to a defendant's substantial rights as to
jeopardize the integrity and fairness of the
proceeding. The burden of persuasion is on the
defendant to show prejudice.
find no plain error in this case. The record reflects that
defense counsel sought an updated psycho-forensic examination
of Smith before sentencing to determine his competency to be
sentenced. DPC professionals could not issue an opinion on
Smith's competency to be sentenced, however, because
Smith refused to participate in the examination. Thus, we
conclude that counsel committed no error in failing to
request another mental health examination. Moreover, the
Superior Court had the presentence investigation report and
DPC's April 2013 pretrial evaluation of Smith to review
before sentencing. The Superior Court considered Smith's
significant mental health issues and his ...