             IN THE SUPREME COURT OF THE STATE OF DELAWARE

FREDERICK H. MITCHELL,                   §
                                         §   No. 195, 2016
        Defendant Below-                 §
        Appellant,                       §
                                         §
        v.                               §   Court Below—Superior Court
                                         §   of the State of Delaware
STATE OF DELAWARE,                       §
                                         §   Cr. ID 1408007610
        Plaintiff Below-                 §
        Appellee.                        §

                           Submitted: June 1, 2016
                           Decided:   August 4, 2016

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

                                     ORDER

        This 4th day of August 2016, 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, Frederick Mitchell, 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 Superior Court’s judgment on the ground that it is manifest on

the face of Mitchell’s opening brief that his appeal is without merit. We agree and

affirm.

        (2)    Mitchell pled guilty to Aggravated Possession of Heroin and

Conspiracy in the Second Degree on January 21, 2015. On March 27, 2015, the
Superior Court sentenced him to a total period of seventeen years at Level V

incarceration, to be suspended after serving eight years in prison for a period of

probation. We affirmed Mitchell’s convictions and sentence on direct appeal.1

Mitchell filed his first motion for postconviction relief in January 2016, which the

Superior Court denied.2 This appeal followed.

         (3)     Mitchell enumerates two arguments in his opening brief on appeal.

Although it is not entirely clear, he appears to argue that his guilty plea was not

knowingly and intelligently made because his trial counsel was ineffective for

failing to obtain forensic test results on the seized drugs before recommending that

Mitchell plead guilty.         Mitchell also seems to argue that the Superior Court

sentenced him with a closed mind because it did not have any forensic test results

before imposing sentence.

         (4)     With respect to Mitchell’s claim that the Superior Court sentenced

him with a closed mind, we note that such sentencing claims cannot be properly

raised in a postconviction motion filed under Superior Court Criminal Rule 61. 3

Moreover, even if this claim could have been properly raised in a Rule 61 motion,




1
    Mitchell v. State, 2015 WL 7575022 (Del. Nov. 24, 2015).
2
    State v. Mitchell, 2016 WL 1621580 (Del. Super. Mar. 22, 2016).
3
  Jones v. State, 2016 WL 2929109, *2 (Del. May 16, 2016) (holding that Rule 61 establishes the
procedure for setting aside a conviction or sentence of death only and that any other sentencing
issues must be raised in a Rule 35 motion).


                                                2
it would be procedurally barred as previously adjudicated4 because this Court, on

direct appeal, previously rejected Mitchell’s claim that the Superior Court judge

sentenced him with a closed mind.5

          (5)    Mitchell’s other argument is that his trial counsel was ineffective for

failing to obtain a forensic analysis of the seized drugs and that this failure led to

Mitchell’s “coerced” plea. To prevail on an ineffective assistance of counsel

claim, a defendant must satisfy the familiar Strickland test. That is, a defendant

must first show that “his counsel’s representation fell below an objective standard

of reasonableness.            Second, the defendant must show that the deficient

performance prejudiced the defense.”6 In the context of a guilty plea, to establish

prejudice the defendant must demonstrate a reasonable probability that, but for his

counsel’s unprofessional errors, the defendant would not have pled guilty but

would have insisted on going to trial.7 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.8

          (6)    In this case, Mitchell fails to demonstrate how forensic testing of the

drugs would have led to a different result in his case. He does not allege, let alone
4
    Super. Ct. Crim. R. 61(i)(4) (2016).
5
    See Mitchell v. State, 2015 WL 7575022, *2 (Del. Nov. 24, 2015).
6
    Neal v. State, 80 A.3d 935, 941-42 (Del. 2013) (internal quotations omitted).
7
    Somerville v. State, 703 A.2d 629, 631 (Del. 1997).
8
    Younger v. State, 580 A.2d 552, 556 (Del. 1990).


                                                  3
establish, that forensic testing would have revealed the drugs to be anything but

heroin, which he admitted possessing.9 Mitchell stated under oath at his plea

colloquy that he was satisfied with his counsel’s representation. He indicated that

he fully understood the charges against him and that he understood the

consequences of pleading guilty. He stated that he was pleading guilty because he

was, in fact, guilty of the charged offenses. He also stated, among other things,

that no one had threatened him or coerced him into pleading guilty. In the absence

of clear and convincing evidence to the contrary, Mitchell is bound by these

statements.10 We thus reject his claim that his guilty plea was involuntary due to

his counsel’s ineffectiveness.

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

Court is AFFIRMED.

                                             BY THE COURT:
                                             /s/ Leo E. Strine, Jr.
                                             Chief Justice




9
    Brown v. State, 108 A.3d 1201, 1202 (Del. 2015).
10
     Somerville v. State, 703 A.2d at 632.


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