           IN THE SUPREME COURT OF THE STATE OF DELAWARE

KEVIN D. GUNTER,                          §
                                          §   No. 336, 2015
      Defendant Below,                    §
      Appellant,                          §   Court Below–Superior Court
                                          §   of the State of Delaware
      v.                                  §
                                          §   Cr. ID No. 1310014746
STATE OF DELAWARE,                        §
                                          §
      Plaintiff Below,                    §
      Appellee.                           §

                          Submitted: February 17, 2016
                          Decided:   May 9, 2016

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

                                      ORDER

      This 9th day of May 2016, upon consideration of the appellant’s brief under

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

response, it appears to the Court that:

      (1)    In 2013, the appellant, Kevin D. Gunter, and two co-defendants were

indicted on multiple counts of drug and drug-related offenses. Gunter was tried

and convicted in 2015 of Drug Dealing in Heroin, Aggravated Possession of

Heroin, Possession of Oxycodone, Possession of Drug Paraphernalia, and

Resisting Arrest. The Superior Court sentenced Gunter to a total of ten years at

Level V suspended after five years for two years at Level IV suspended after six

months for eighteen months at Level III. This is Gunter’s direct appeal.
      (2)    On appeal, Gunter’s Appellate Counsel1 has filed a no-merit brief and

a motion to withdraw under Supreme Court Rule 26(c). Appellate Counsel asserts

that, based upon a complete and careful examination of the record, there are no

arguably appealable issues. Appellate Counsel provided Gunter with a copy of the

motion to withdraw and the no-merit brief in draft form and advised Gunter that he

could submit written points for the Court’s consideration.            Gunter submitted

written points that are included in the brief. In response, the State has moved to

affirm the Superior Court’s judgment.

      (3)    When reviewing a motion to withdraw and an accompanying brief

under Rule 26(c), this Court must be satisfied that the appellant’s counsel has made

a conscientious examination of the record and the law for arguable claims.2 Also,

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 adversary

presentation.”3

      (4)    In early 2014, the former Office of the Chief Medical Examiner

(“OCME”) came under investigation for employee misconduct and lax security

practices. As a result of the investigation, all drug evidence submitted to the

OCME, including the drug evidence seized in Gunter’s case, was removed from

1
  Gunter was represented by different counsel at trial.
2
  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).
3
  Penson v. Ohio, 488 U.S. at 81.
                                            2
the OCME and transported to the Delaware State Police, where it was audited. In

Gunter’s case, after the evidence was audited it was transferred to an independent

lab in Pennsylvania and the U.S. Drug Enforcement Agency, where it was tested.

         (5)    In June 2014, Gunter’s appointed Trial Counsel filed a motion in

limine, arguing that the drug evidence should be excluded because the breakdown

in security at the OCME made the evidence unreliable. Gunter’s motion in limine

was denied on December 11, 2014, following the Superior Court’s decision in

State v. Irwin, which denied similar motions in cases such as Gunter’s, where the

drug evidence was stored but not tested by the OCME.4              Gunter’s case was

scheduled for trial in February 2015.

         (6)    On December 23, 2014, Gunter filed a pro se “motion to dismiss

current counsel and/or appoint new counsel.” Trial Counsel asked the Superior

Court to conduct a colloquy on Gunter’s representation. At the January 12, 2015

case review, Trial Counsel advised the court that Gunter wished to withdraw the

motion.

         (7)    At the call of the calendar on February 10, 2015, Gunter complained

to the Criminal Assignment Judge that Trial Counsel did not plan to argue that the

drug evidence was inadmissible. Gunter asserted that there were discrepancies in

the audit conducted by the State Police. Trial Counsel told the court that his trial


4
    State v. Irwin, 2014 WL 6734821 (Del. Super. Nov. 17, 2014).
                                                3
strategy in Gunter’s case did not include an admissibility argument because the

court had denied Gunter’s motion in limine under Irwin and Trial Counsel was

without a good faith basis to argue against that decision. Trial Counsel further

explained that the discrepancies in the audit were not worth raising at trial, and that

there were better, more credible arguments to make, having to do with Gunter’s

lack of knowledge about the existence of the drugs. After hearing from Gunter and

Trial Counsel, the Criminal Assignment Judge ruled that the “motion to dismiss

[Trial Counsel] is denied.”5

          (8)    During jury selection the next day, Gunter complained to the Trial

Judge that he did not “want to move forward with [Trial Counsel] because we’re

not seeing eye-to-eye.”6 The Trial Judge advised Gunter that the court would not

appoint new counsel to represent him, but that if he wanted to discharge Trial

Counsel and proceed pro se, the trial would be continued and he would be given

additional time to prepare for trial. Later, during a break in voir dire, the Trial

Judge conducted a colloquy with Gunter on the risks of proceeding pro se at trial

and gave Gunter time to discuss the matter with Trial Counsel. After voir dire, the

Trial Judge asked Gunter what he had decided about his representation. The Judge

stated: “The train is about to leave the station here. You need to make a decision.

Are you going to represent yourself or are you going to have [Trial Counsel]

5
    Colloquy Tr. at 11 (Feb. 10, 2015).
6
    Trial Tr. at 5 (Feb. 11, 2015).
                                           4
represent you?”7 Gunter responded, “I’m going to have [Trial Counsel] represent

me.”8

        (9)    When trial resumed after the lunch recess, Trial Counsel advised the

court that Gunter wanted to proceed pro se “so that he can present the OCME

issues that he raised earlier.”9 The Trial Judge allowed Gunter to address the court

even though the court had given him “ample opportunity to proceed on his own”

and the jury was empaneled and sworn.10 Gunter told the court that he wanted to

retain new counsel. The Trial Judge denied the request.

        (10) The following morning, which was midway through the trial, Gunter

complained again about Trial Counsel’s defense strategy and asked the Trial Judge

to declare a mistrial because Trial Counsel had stipulated to the chain of custody of

the drug evidence. Gunter told the court, “All I want is a chance to talk to my

family and hire a new lawyer. That’s it.”11 The court denied Gunter’s request for a

mistrial, and the trial proceeded to its conclusion.

        (11) Gunter claims on appeal that the Superior Court should have

appointed new counsel or allowed him to retain new counsel when it became clear

that he had a fundamental disagreement with Trial Counsel about the trial strategy.


7
  Trial Tr. Excerpt at 53 (Feb. 11, 2015).
8
  Id.
9
  Trial Tr. at 32 (Feb. 11, 2015).
10
   Id.
11
   Trial Tr. at 11 (Feb. 12, 2015).
                                             5
The claim is without merit. Although a criminal defendant is entitled to the

assistance of counsel,12 a criminal defendant does not have a right to dictate to

counsel trial strategy13 or how best to proceed in the case.14

       (12) When faced with a request for a change in counsel shortly before or

during a criminal trial, the Superior Court must determine if the reasons for a

change in counsel justify a continuance of the trial to make such a change.15 If the

court determines, in its discretion, that the defendant is not entitled to a

continuance to obtain new counsel, a defendant has two options: to proceed with

his existing counsel or to proceed pro se.16

       (13) In this case, the Criminal Assignment Judge and the Trial Judge

considered Gunter’s requests for new counsel. The requests for new counsel were

made shortly before trial and during trial, which would have disrupted the trial

proceedings. Gunter was also given the choice of a continuance and the chance to

proceed pro se. He chose to stay with his existing counsel. Finally, Gunter’s last

request for new counsel was made after the jury had been empaneled and sworn.


12
   Zimmerman v. State, 2010 WL 546971 (Del. Feb. 12, 2010) (citing Cooke v. State, 977 A.2d
803, 840-41 (Del. 2009) citing U.S. Const. amend. VI; Johnson v. Zerbst, 304 U.S. 458, 463
(1938); Gideon v. Wainwright, 372 U.S. 335, 342 (1963); Kimmelman v. Morrison, 477 U.S.
365, 380 (1986)).
13
   Id. (citing Bultron v. State, 897 A.2d 758, 763 (Del. 2006) citing Wheat v. United States, 486
U.S. 153, 160 (1988)).
14
   Bultron v. State, 897 A.2d at 763 (citing Muto v. State, 2004 WL 300441, *2 n.9 (Del. Feb. 12,
2004) citing Austin v. State, 2001 WL 898621, at *2 (Del. Aug. 6, 2001)).
15
   Stevenson v. State, 709 A.2d 619, 630-31 (Del. 1998).
16
   Zimmerman v. State, 2010 WL 546971 (citing Bultron, 897 A.2d at 763).
                                               6
As the trial judge found, the request came too late. The Superior Court did not

abuse its discretion in denying Gunter’s request for new counsel.

         (14) Gunter’s remaining points on appeal concern the consequences of

Trial Counsel’s decision to stipulate to the chain of custody of the drug evidence.

Gunter’s claims about Trial Counsel’s trial strategy are allegations of ineffective

assistance of counsel, which are not reviewable by this Court in the first instance

on direct appeal.17

         (15) The Court has conducted “a full examination of all the proceedings”

and found “no nonfrivolous issue for appeal.”18                The Court is satisfied that

Appellate Counsel made a conscientious effort to examine the record and the law

and properly determined that Gunter could not raise a meritorious claim on appeal.

         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/ Collins J. Seitz, Jr.
                                                    Justice




17
     Desmond v. State, 654 A.2d 821, 829 (Del. 1994).
18
     Penson v. Ohio, 488 U.S. at 80.
                                                7
