           IN THE SUPREME COURT OF THE STATE OF DELAWARE

FLOYD MILLS,                            §
                                        §      No. 177, 2015
      Defendant Below,                  §
      Appellant,                        §      Court Below – Superior Court
                                        §      of the State of Delaware
      v.                                §
                                        §      Cr. ID No. 1307023821
STATE OF DELAWARE,                      §
                                        §
      Plaintiff Below,                  §
      Appellee.                         §

                           Submitted: November 16, 2015
                           Decided:   January 6, 2016

Before HOLLAND, VALIHURA and VAUGHN, Justices.

                                     ORDER

      This 6th day of January 2016, upon consideration of the appellant’s brief

filed pursuant to Supreme Court Rule 26(c), his attorney’s motion to withdraw, and

the State’s response, it appears to the Court that:

      (1)    Shortly after midnight on July 29, 2013, a man described as wearing a

gray mask, green tee shirt, fatigue-style camouflage shorts, and black work gloves,

entered a Wilmington social club at 1220 North Claymont Street and held up the

club’s bartender and another man. The masked man fled the club with $250 in

cash from the register and several bottles of liquor. Later that morning, after an

investigation initiated by a witness’ tip about the robber’s whereabouts, the

appellant, Floyd Mills, was taken into custody as he was exiting the back door of a
Wilmington residence at 2510 Thatcher Street. Following two searches of the

Thatcher Street residence, one without a warrant and the other with a warrant,

Mills was arrested and charged with the robbery. Following his arrest, Mills made

incriminating statements to the police.

       (2)    In October 2013, Mills was indicted on charges of Robbery in the

First Degree, Possession of a Firearm during the Commission of a Felony,

Possession of a Firearm by a Person Prohibited (“PFBPP”), and Wearing a

Disguise during the Commission of a Felony. In January 2014, Mills, through his

defense counsel, filed a motion to suppress the evidence seized during the searches

of 2510 Thatcher Street and Mills’ incriminating statements to the police. The

Superior Court denied the motion to suppress after a hearing. Mills’ trial was

scheduled for November 12, 2014.

       (3)    On November 7, 2014, Mills pled guilty to one count of Robbery in

the First Degree and one count of PFBPP. In exchange for the guilty plea, the

State dismissed the other charges in the indictment. Also, the State agreed not to

seek Mills’ sentencing as a habitual offender under 11 Del. C. § 4214(b) and to

seek sentencing under § 4214(a) only on PFBPP, the lesser of the two felony

offenses.1   For his part, Mills agreed not to oppose the motion seeking his



1
  When imposing a sentence under 11 Del. C. § 4214(b), the Superior Court must impose a life
sentence. When imposing a sentence under 11 Del. C. § 4214(a), the Superior Court has the
                                             2
sentencing as a habitual offender under 11 Del. C. § 4214(a) and his sentencing

thereunder for PFBPP.

          (4)    Prior to sentencing, Mills submitted a pro se letter asking the Superior

Court to withdraw the plea and to assign him new counsel. Mills stated that he was

dissatisfied with his defense counsel’s representation because counsel took

advantage of Mills’ learning disability and forced him into taking the plea. By

letter dated February 18, 2015, the Superior Court denied Mills’ request to

withdraw the plea and for the appointment of new counsel, and the matter

proceeded to sentencing. At sentencing on March 13, 2015, Mills again told the

Superior Court that he was “forced” into taking the plea, had been “taken

advantage of,” and wanted to withdraw the plea.2                 The Superior Court again

rejected Mills’ contentions and imposed sentence.

          (5)    For PFBPP, Mills was declared a habitual offender under 11 Del. C. §

4214(a) and sentenced to fifteen years at Level V. For Robbery in the First

Degree, Mills was sentenced to ten years at Level V suspended after three years




discretion to impose up to a life sentence and must impose the statutory maximum applicable if
the operative conviction is a felony listed in 11 Del. C. § 4201(c), such as Robbery in the First
Degree and, in this case, PFBPP. The statutory maximum for Robbery in the First Degree is
twenty-five years. 11 Del. C. §§ 832, 4205(b)(2). The statutory maximum for PFBPP, a class C
felony in this case, is fifteen years. 11 Del. C. §§ 1448(c), 4205(b)(3) (2010 & Supp. 2015).
2
    Hr’g Tr. at 9-10 (Mar. 13, 2015).
                                               3
minimum mandatory for six months at Level III probation. This is Mills’ direct

appeal.

          (6)    On appeal, Mills’ defense counsel (“Defense Counsel”) has filed a no

merit brief and a motion to withdraw under Supreme Court Rule 26(c).3 Defense

Counsel asserts that, based upon a complete and careful examination of the record,

there are no arguably appealable issues. Defense Counsel reports that Mills was

informed that he had a right to supplement the brief with written points for the

Court’s consideration. Mills has submitted as his written points a copy of the

motion to suppress filed in the Superior Court and a motion for appointment of

new counsel on appeal. The State has responded to Defense Counsel’s brief and

motion to withdraw, Mills’ submission, and has moved to affirm the Superior

Court’s judgment.

          (7)    When reviewing Defense Counsel’s motion to withdraw and brief

under Rule 26(c), the Court must be satisfied that Defense Counsel has made a

conscientious examination of the record and the law for arguable claims.4

Additionally, 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



3
    See Del. Supr. Ct. R. 26(c) (governing criminal appeals without merit).
4
 Penson v. Ohio, 488 U.S. 75, 83 (1988); McCoy v. Court of Appeals of Wisconsin, 486 U.S.
429, 442 (1988); Anders v. California, 386 U.S. 738, 744 (1967).
                                                  4
adversary presentation.”5 If the Court finds nonfrivolous issues for appeal, the

Court will grant Defense Counsel’s motion to withdraw and will appoint new

counsel to represent Mills on appeal.6

          (8)    The Court has carefully reviewed the Superior Court record on appeal

and has found “no nonfrivolous issue”7 with respect to Mills’ pro se motion to

withdraw the guilty plea. After considering the factors established in Scarborough

v. State to evaluate such a motion,8 the Superior Court found no good faith basis to

withdraw the plea in this case. Specifically, the Superior Court found that Mills’

motion to withdraw the plea made no assertion that there was a procedural defect

in taking the plea and no assertion of legal innocence. Also, the Superior Court

found that Mills admitted the offenses during the plea colloquy9 and represented in

open court that he was knowingly and voluntarily entering the plea. Finally, the

Superior Court found that Mills was adequately represented by Defense Counsel

and that withdrawing the plea would be problematic for the State (although



5
    Penson v. Ohio, 488 U.S. at 81-82.
6
    Id. at 80.
7
    Id.
8
  See Scarborough v. State, 938 A.2d 644, 649 (Del. 2007) (listing factors to consider when
evaluating a motion to withdraw a guilty plea).
9
  The Court notes that Mills entered a Robinson plea to Robbery in the First Degree. See
Robinson v. State, 291 A.2d 279 (Del. 1972) (permitting the acceptance of a guilty plea in the
absence of an admission of guilt).


                                              5
perhaps not prejudicial) because the witnesses had been excused.                 The Court

concludes that the Superior Court’s findings are supported by the transcript of the

plea colloquy.

          (9)    Mills’ written submission on appeal does not contest the voluntariness

of the plea. To the extent the submission is intended to prompt this Court’s review

of the denial of the motion to suppress, the submission is unavailing. Mills’

voluntary guilty plea waived his right to challenge the suppression ruling on

appeal.10

          (10) Having conducted “a full examination of all the proceedings” and

found “no nonfrivolous issue for appeal,”11 the Court concludes that the appeal is

“wholly without merit.”12 The Court is satisfied that Defense Counsel made a

conscientious effort to examine the record and the law and properly determined

that Mills could not raise a meritorious claim on appeal.




10
  Miller v. State, 840 A.2d 1229, 1232 (Del. 2003) (citing Downer v. State, 543 A.2d 309, 312-
13 (Del. 1988)).
11
     Penson v. Ohio, 488 U.S. 75, 80 (1988).
12
     Supra note 3.
                                               6
      NOW, THEREFORE, IT IS ORDERED that the State’s motion to affirm is

GRANTED. The judgment of the Superior Court is AFFIRMED. The motion to

withdraw is moot.

                                 BY THE COURT:

                                 /s/ Karen L. Valihura
                                 Justice




                                   7
