Submitted: December 13, 2018
Below: Superior Court of the State of Delaware Cr. ID No.
VALIHURA, SEITZ, and TRAYNOR, Justices.
F. TRAYNOR JUSTICE
25th day of February 2019, upon consideration of the no-merit
brief and motion to withdraw under Supreme Court Rule 26(c)
and the State's response, it appears to the Court that:
appellant, Derek Capers, was indicted on charges of
Possession of a Firearm by a Person Prohibited
("PFBPP"), Possession of Ammunition by a Person
Prohibited ("PABPP"), Carrying a Concealed Deadly
Weapon ("CCDW"), and Possession of Marijuana. On
May 31, 2015, Capers pleaded guilty to PFBPP and CCDW.
Sentencing was deferred pending a presentence investigation.
the outset of the guilty plea hearing, the parties addressed
an unresolved issue noted in the guilty plea agreement and
Truth-in-Sentencing Guilty Plea Form concerning the effect,
if any, of Capers' prior New Jersey drug conviction on
the sentence to be imposed for PFBPP under 11 Del.
C. § 1448(e)(1). Capers had two prior convictions, both
in New Jersey. The parties agreed that one of the
convictions-aggravated manslaughter-qualified as a
"prior violent felony" that would subject Capers to
a five-year minimum-mandatory sentence under §
1448(e)(1)(b). What the parties did not know was whether
the second New Jersey conviction-a drug conviction-also
qualified as a "prior violent felony." If it did,
Capers would be subject to a ten-year minimum-mandatory
sentence under § 1448(e)(1)(c).
reflected in the plea agreement and confirmed at the guilty
plea hearing, the parties determined that it would be
appropriate to proceed with the plea colloquy and refer the
unresolved sentencing question to the presentence office.
After discussing all of this with counsel at the guilty plea
hearing, the Superior Court asked Capers if he still wanted
to enter the guilty plea. Capers indicated that he
Capers' sentencing was scheduled for June 26, 2015. On
June 25, the State submitted a letter indicating its
disagreement with the conclusion in the presentence report
that Capers' New Jersey drug conviction did not qualify
as a prior violent felony under 11 Del. C. §
1448(e) because it was not classified as a violent felony in
New Jersey. The State correctly contended that Delaware's
classification of the crime controlled, not New Jersey's,
that the equivalent drug offense in Delaware was classified
as a violent felony.
Superior Court deferred Capers' sentencing. Upon further
consideration of the issue, Capers moved to withdraw the
guilty plea, asserting that the plea should be withdrawn
because he had entered into it believing that New Jersey law
would determine whether or not his New Jersey drug conviction
was a violent felony. By order dated November 17, 2015, the
Superior Court granted the plea withdrawal motion, stating
that "[t]he benefit of hindsight leads the Court to
conclude that it should not have accepted this guilty plea
when there was so much unknown regarding defendant's
prior conviction(s) in New Jersey."
When Capers' case went to trial, the jury convicted him,
as charged, of PFBPP, PABPP, CCDW, and Possession of
Marijuana. Capers was sentenced to a total of twenty-three
years of Level V incarceration suspended after ten years for
six months of Level IV supervision followed by Level III
probation. This is Capers' direct appeal.
appeal, Capers' trial counsel has filed a no-merit brief
and motion to withdraw under Rule 26(c). Counsel asserts
that, based upon a complete and careful examination of the
record, there are no arguably appealable issues. Capers has
supplemented the Rule 26(c) brief with claims that he would
like the Court to consider on appeal. The State has responded
to the position taken by Capers' counsel and the claims
raised by Capers, and has moved to affirm the Superior
When considering a Rule 26(c) brief and motion to withdraw,
our standard and scope of review is twofold. First, we must be
satisfied that the appellant's counsel made a
conscientious examination of the record and the law for
claims that could arguably support the appeal. Second, we must
conduct our own review of the record to determine whether the
appeal is so totally devoid of at least arguably appealable
issues that it can be decided without an adversary
Capers does not address his jury trial or sentencing on
appeal. Instead, he claims that the Superior Court erred when
it permitted-at his request-the withdrawal of his guilty
plea. According to Capers, the Superior Court should have
denied the motion to withdraw the plea, enforced the plea
agreement-which he asserts was breached by the State- and
imposed the five-year minimum-mandatory sentence for PFBPP
based on one qualifying prior violent felony. Because Capers
did not challenge the withdrawal of his guilty plea in the
Superior Court, we review his claims for plain error.
"Under the plain error standard of ...