      IN THE SUPREME COURT OF THE STATE OF DELAWARE

MICHAEL A. BROWN,                       §
                                        §   No. 51, 2015
      Defendant Below-                  §
      Appellant,                        §
                                        §
      v.                                §   Court Below—Superior Court
                                        §   of the State of Delaware,
STATE OF DELAWARE,                      §   in and for New Castle County
                                        §   Cr. ID 1107009697
      Plaintiff Below-                  §
      Appellee.                         §

                           Submitted: July 17, 2015
                           Decided:   September 21, 2015

Before STRINE, Chief Justice; VAUGHN, and SEITZ, Justices.

                                  ORDER

      This 21st day of September 2015, upon consideration of the

appellant’s opening brief, the State’s motion to affirm, and the record on

appeal, it appears to the Court that:

      (1)    The appellant, Michael Brown, filed this appeal from the

Superior Court’s denial of his first motion for postconviction relief. The

State has filed a motion to affirm the judgment below on the ground that it is

manifest on the face of Brown’s opening brief that his appeal is without

merit. We agree and affirm.

      (2)    The record reflects that, on May 15, 2012, Brown pled guilty to

two counts of Assault in the First Degree (as lesser included offenses to
Attempted Murder in the First Degree) and one count of Possession of a

Deadly Weapon during the Commission of a Felony. Before sentencing,

Brown’s appointed counsel filed a motion to withdraw Brown’s guilty plea

and filed a motion to withdraw as counsel.

      (3)    The Superior Court held a hearing on both motions on July 24,

2012. Brown told the judge that he wanted to withdraw his plea because he

was not happy with his trial counsel. Brown stated that counsel had never

expressed any confidence in the outcome of going to trial and had told

Brown that he thought he would be found guilty by a jury and would be

sentenced to thirty-five or forty years in prison. Brown asserted that counsel

had incorrectly informed him of the recommended sentence under the

sentencing guidelines (although Brown conceded that the statutory minimum

and maximum sentence were correct on the guilty plea agreement). Brown

told the judge that he supported his counsel’s motion to withdraw and that he

wanted the opportunity to retain his own private counsel and go to trial.

      (4)    The Superior Court explained to Brown that, if Brown’s

appointed counsel were permitted to withdraw, the court would not appoint

substitute counsel to represent him at State expense. The Superior Court

explained to Brown the dangers of representing himself, if the Court granted

his motion to withdraw his plea and Brown was unable to retain private



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counsel. Brown acknowledged his understanding. In response, the State

asserted that Brown had not established a fair and just reason under Superior

Court Criminal Rule 32(d) to permit withdrawal of his plea.

        (5)   After taking both motions under advisement, the Superior Court

issued a written decision on July 31, 2012, granting counsel’s motion to

withdraw and staying a further ruling on Brown’s motion to withdraw his

plea to allow Brown the opportunity to retain new counsel. The Superior

Court stated that, if new counsel entered an appearance in the case by

September 7, 2012, then new counsel would be permitted to file an amended

motion to withdraw Brown’s plea. If new counsel had not entered the case

by September 7, 2012, then Brown’s motion to withdraw his plea would be

denied and Brown would proceed to sentencing pro se on September 28,

2012.

        (6)   New counsel did not enter an appearance on Brown’s behalf.

On September 28, 2012, Brown appeared for sentencing pro se.             The

Superior Court sentenced him to a total period of thirty-two years at Level V

imprisonment, to be suspended after serving seventeen years in prison for

decreasing levels of supervision. Brown did not file a direct appeal.

        (7)   Instead, on October 9, 2013, Brown filed a motion for

postconviction relief, alleging that the Superior Court erred in denying his



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motion to withdraw his plea, that his trial counsel was ineffective, and that

he was denied his right to counsel at sentencing.         The Superior Court

appointed postconviction counsel to represent Brown. On May 9, 2014,

postconviction counsel filed a motion to withdraw under Superior Court

Criminal Rule 61(e)(2) on the grounds that Brown’s arguments were so

lacking in merit that counsel could not ethically advocate them and because

counsel found no other arguable ground for relief. On December 9, 2014, a

Superior Court Commissioner issued a report finding that Brown’s claims

were both procedurally barred and without merit.           The Commissioner

recommended that postconviction counsel be permitted to withdraw and that

Brown’s motion be denied. On January 8, 2015, the Superior Court accepted

the Commissioner’s report and recommendation and denied Brown’s

motion. This appeal followed.

      (8)    In his opening brief on appeal, Brown argues that: (i) his trial

counsel was ineffective for failing to conduct an adequate investigation in

his case and for failing to obtain surveillance videos; (ii) his trial counsel

was ineffective for misinforming him about the enhanced recommended

sentence under the sentencing guidelines because of his prior criminal

record; and (iii) he was denied his right to counsel at sentencing.




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       (9)    We review the Superior Court’s denial of postconviction relief

for abuse of discretion, although we review questions of law de novo.1

Brown’s first issue on appeal, contending that his trial counsel was

ineffective for failing to conduct an adequate investigation, was not raised in

the motion he filed in the Superior Court. In the absence of any showing of

plain error, we will not consider this claim for the first time on appeal.2

       (10) Brown’s second claim is that his trial counsel was ineffective

for failing to correctly advise him of the applicable Truth in Sentencing

guidelines. To establish a claim of ineffective assistance of counsel in the

context of a guilty plea, a defendant must demonstrate that: (a) counsel’s

conduct fell below an objective standard of reasonableness; and (b) there is a

reasonable probability that, but for counsel’s errors, the defendant would not

have pled guilty but would have insisted on going to trial. 3 A defendant

must make concrete allegations of cause and actual prejudice to substantiate

a claim of ineffective assistance of counsel or else risk summary dismissal. 4

       (11) As the Superior Court correctly informed Brown at the hearing

on his motion to withdraw, a mistake regarding the sentencing guidelines

does not negate an otherwise valid guilty plea because the guidelines are

1
  Claudio v. State, 958 A.2d 846, 850 (Del. 2008).
2
  Keyser v. State, 2014 WL 1168835, *2 (Del. Mar. 20, 2014).
3
  Hill v. Lockhart, 474 U.S. 52, 58-59 (1985).
4
  Younger v. State, 580 A.2d 552, 556 (Del. 1990).


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voluntary and are not binding.5 Here, Brown was correctly informed of the

statutory range of sentences for his convictions.           Even though the plea

agreement did not reflect the correct presumptive sentence under the TIS

guidelines given Brown’s prior criminal record, we find no prejudice to

Brown.     Brown originally was charged with three counts of attempted

murder, a class A felony, as well as six additional felony charges. If Brown

had gone to trial, he faced the possibility of a life sentence. Thus, he

received a substantial benefit by agreeing to plead guilty to the lesser

included charges of assault and to only one weapon charge.6 We find no

merit to his contention that he would not have pled guilty if he had been

correctly informed of the non-binding TIS guideline sentence.7

       (12) Brown’s final claim is that he was denied his right to counsel at

his sentencing. The Superior Court, however, carefully reviewed Brown’s

options with him when Brown indicated at the hearing on counsel’s motion

to withdraw that he supported his counsel’s motion. Brown understood that

the Superior Court would grant Brown additional time to retain private

counsel but that the Superior Court would not appoint substitute counsel to

represent him at State expense, if appointed counsel was granted leave to


5
  Siple v. State, 701 A.2d 79, 82-83 (Del. 1997).
6
  Jamison v. State, 2003 WL 21295908 (Del. June 3, 2003).
7
  Stanley v. State, 2013 WL 543897 (Del. Feb. 12, 2013).


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withdraw.        Brown understood that his choice was to proceed with his

appointed counsel, retain his own private counsel, or proceed pro se. 8 The

record reflects that Brown validly waived his right to appointed counsel and

then failed to retain private counsel. Under these circumstances, Brown was

not denied his right to counsel at sentencing.

           NOW, THEREFORE, IT IS ORDERED that the judgment of the

Superior Court is AFFIRMED.

                                               BY THE COURT:



                                               /s/ Collins J. Seitz, Jr.
                                                      Justice




8
    Bultron v. State, 897 A.2d 758, 763 (Del. 2006).


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