      IN THE SUPREME COURT OF THE STATE OF DELAWARE

CHRISTOPHER HERRING,                        §
                                            §      No. 159, 2015
       Defendant-Below,                     §
       Appellant,                           §      Court Below – Superior Court
                                            §      of the State of Delaware in
       v.                                   §      and for New Castle County
                                            §
STATE OF DELAWARE,                          §      Cr. ID No. 1406013201
                                            §
       Plaintiff-Below,                     §
       Appellee.                            §

                             Submitted: September 2, 2015
                             Decided:   November 18, 2015

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

                                     ORDER

       This 18th day of November 2015, 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 May 2005, the appellant, Christopher Herring, was convicted

of Robbery in the First Degree and other offenses.1 On February 10, 2006,

the Superior Court granted the State‟s motion to declare Herring a habitual

offender under 11 Del. C. § 4214(a) and sentenced Herring to a total of fifty

years at Level V followed by probation. The Court notes that Herring did


1
 The Court has taken judicial notice of the proceedings in State v. Herring, Del. Super.,
Cr. ID No. 0405021313.
not challenge the sentence on direct appeal.2 In 2008, the Superior Court

denied Herring‟s claim that the State had provided insufficient evidence to

have him declared a habitual offender.3

           (2)     In August 2014, Herring was indicted on two counts of

Promoting Prison Contraband. On November 24, 2014, Herring pled guilty

to one count and the State agreed to enter a nolle prosequi on the other count

and to recommend no more than eighteen months of incarceration at

sentencing.4 The prosecutor also made it clear that that the State intended to

seek habitual offender status at sentencing.5 During the plea colloquy, both

Herring and his trial counsel (“Trial Counsel”) acknowledged that Herring

was aware that he faced up to a life sentence if the State again established

that he was eligible for sentencing as a habitual offender.6 After accepting

the guilty plea, the Superior Court referred the matter for a presentence

investigation, as requested by the parties, and scheduled sentencing for

March 2015.

2
  Herring v. State, 2007 WL 1295823, at *1 (Del. Oct. 30, 2006) (“Herring claims [only]
that the Superior Court judge abused her discretion when she denied his motion to
suppress evidence seized when police executed an allegedly deficient search warrant.”).
3
  State v. Herring, 2008 WL 2083127, at * 2 (Del. Super. May 12, 2008) (“The State
presented „unambiguous documentary evidence‟ of Defendant‟s prior convictions, in
satisfaction of the statute . . . .”).
4
    App. to Non-Merit Br. at 9 (Plea Hearing Tr. at 2-3, Nov. 24, 2014).
5
    Id.
6
    Id. at 3, 5.
                                              2
           (3)   On February 19, 2015, the State filed its motion to re-declare

Herring a habitual offender under 11 Del. C. § 4214(a). Trial Counsel did

not file a response to the motion, and at Herring‟s sentencing on March 11,

2015, Trial Counsel stated that he had found no legal reason to dispute the

motion.7

           (4)   Before sentencing, Herring filed several letters and motions

disputing his eligibility for sentencing as a habitual offender and the

accuracy of the State‟s habitual offender motion.                  Herring disputed the

motion again when given the opportunity to address the Superior Court at

sentencing. After listening to Herring‟s claims, the Superior Court found

“that the motion in fact states the necessary requisite to have the defendant

declared an habitual offender.”8 The court then declared Herring a habitual

offender under § 4214(a) and sentenced him to eighteen months at Level V.

This is Herring‟s direct appeal.

           (5)   On appeal, Herring‟s appellate counsel (“Appellate Counsel”)9

has filed a brief and a motion to withdraw under Supreme Court Rule

26(c).10 Appellate Counsel asserts that, based upon a complete and careful


7
    App. to Non-Merit Br. at 72 (Sentencing Tr. at 4, Mar. 11, 2015).
8
    Id. at 7.
9
    Herring was represented by different counsel in the Superior Court.
10
     See Del. Supr. Ct. R. 26(c) (governing criminal appeals without merit).
                                              3
examination of the record, there are no arguably appealable issues. Herring

has submitted several claims for the Court‟s consideration. The State has

responded to Herring‟s claims and has moved to affirm the Superior Court‟s

judgment.

          (6)    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.11 Moreover, 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.”12

          (7)    On appeal, Herring raises a claim of ineffective assistance of

counsel on the basis that his Trial Counsel did not let him review the

presentence report, did not request a separate hearing on the habitual

offender motion as Herring had requested, and did not look into Herring‟s

claims that he did not have the required number of convictions to qualify for

sentencing as a habitual offender. This Court will not consider a claim of




11
  Penson v. Ohio, 488 U.S. 75, 82-83 (1988); McCoy v. Court of Appeals of Wis., 486
U.S. 429, 442 (1988); Anders v. California, 386 U.S. 738, 744 (1967).
12
     Penson, 488 U.S. at 82.
                                         4
ineffective assistance of counsel that is raised for the first time on direct

appeal.13

          (8)    In this case, the record reflects that Herring questioned the

effectiveness of his Trial Counsel in his letters and motions filed in the

Superior Court before sentencing. There is no indication, however, that the

Superior Court considered and adjudicated any complaints of ineffective

assistance of counsel. In the absence of a fully-developed record, we decline

to consider Herring‟s ineffective assistance of counsel claim for the first

time in his direct appeal.14

          (9)    Next, Herring claims, as he did in the Superior Court, that the

State erred when seeking habitual offender sentencing based, in part, on a

prior felony conviction for Receiving Stolen Property (“RSP”) in 1996.

Herring contends that he was convicted of RSP in 1995, and he insists that

any court records reflecting a 1996 conviction are incorrect.

          (10) The Superior Court‟s determination that a defendant is a

habitual offender must be supported by substantial evidence and be free

from legal error and abuse of discretion.15 In this case, the State‟s motion to


13
     Desmond v. State, 654 A.2d 821, 829 (Del. 1994).
14
  Hicks v. State, 2011 WL 2937393, at *2 (Del. July 21, 2011) (citing Duross v. State,
494 A.2d 1265, 1267 (Del. 1985)).
15
     Hall v. State, 788 A.2d 118, 129 (Del. 2001).
                                              5
re-declare Herring a habitual offender provided a certified docket sheet of

Herring‟s March 13, 1996 conviction for felony RSP in Cr. ID No.

9406010260. Herring has provided nothing that shows a different date.

Under these circumstances, there was substantial evidence to support the

Superior Court‟s conclusion that the State had met its burden of proof in

establishing the 1996 felony RSP conviction as one of the three prior

convictions required to declare Herring a habitual offender.16 Herring‟s

claim to the contrary is without merit.

          (11) Herring raises several claims on appeal that were not raised in

the Superior Court. We have reviewed the claims for plain error.17 In the

first of those claims, Herring contends that the 1996 RSP conviction was too

remote in time to qualify as a prior conviction for the purpose of declaring

Herring a habitual offender in 2015. In support of his claim, Herring cites to

the Delaware Sentence Accountability Commission Benchbook, SENTAC

Policy 4, which provides:

                   For the purposes of sentencing, a conviction-free
                   period of ten (10) years after final release from
                   incarceration, or from date of sentence if only
                   probation at levels I thru IV was ordered, shall be

16
     Id. at 128.
17
   Del. Supr. Ct. R. 8. “Under the plain error standard of review, the error complained of
must be so clearly prejudicial to substantial rights as to jeopardize the fairness and
integrity of the trial process.” Wainwright v. State, 504 A.2d 1096, 1100 (Del. 1986).
                                            6
                sufficient to “wash” the criminal history prior to
                that date. Felony A and Felony B crimes are
                excluded from this policy and should always be
                considered at time of sentencing.18

Herring‟s claim is without merit. There is no prohibition against the State

supporting a habitual offender motion with convictions that are more than

ten years old, and there was no error in seeking Herring‟s sentencing as a

habitual offender based, in part, on his 1996 RSP conviction.19 Herring has

not demonstrated that SENTAC Policy 4 has any relevance in his case.

         (12) Next, Herring complains that he was never interviewed by a

presentence investigator. Also, Herring contends that the trial prosecutor

“read a false presentence investigation report” before sentencing. Herring

has not demonstrated that he was prejudiced because he was not interviewed

by a presentence investigator, and there is nothing in the record suggesting

that the prosecutor “read a false presentence investigation report” before

sentencing.20



18
     See Delaware Sentencing Accountability Commission Benchbook 27 (2015)
19
   11 Del. C. § 4214. Walker v. State, 2011 WL 3904991, at *2 (Del. Sept. 6, 2011)
(“[T]he General Assembly adopted no statute of limitations on the prior felony
convictions that may establish a defendant‟s status as a habitual offender.”); Winn v.
State, 2011 WL 556439, at *1 (Del. Feb. 16, 2011).
20
   In fact, the record suggests that the Superior Court withdrew the referral for a
presentence report after concluding that the report was unnecessary. See App. to
Non-Merit Br. (docket at 15, State v. Herring, Del. Super., Cr. ID No. 1406013201 (Feb.
23, 2015)) (regarding presentence investigation).
                                          7
          (13) Finally, Herring appears to claim that the prosecutor stated in

error at sentencing that Herring had five prior convictions for felony RSP.21

Herring contends that he has only three such convictions. Assuming that the

State misstated the correct number of prior felony RSP convictions at

Herring‟s sentencing,22 Herring has not demonstrated that he suffered any

prejudice as a result. The record reflects that the State‟s motion to re-declare

Herring a habitual offender presented unambiguous documentary evidence

of three prior felony convictions.23 The Court can discern no error of law or

abuse of discretion on the part of the Superior Court when re-declaring

Herring a habitual offender.24

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

and found “no nonfrivolous issue for appeal,”25 the Court concludes that this


21
     At sentencing the prosecutor stated:
                 [Herring] has a long and violent history. He has a robbery
                 1st, a possession of a firearm during the commission of a
                 felony, and possession of a destructive weapon in 2006. He
                 has a robbery and a burglary form New Jersey in 1985. He
                 has escape after conviction in 1998. He has five prior
                 receiving stolen property which were all felonies.
     App. to Non-Merit Br. at 73 (Sentencing Tr. at 7, Mar. 11, 2015)) (emphasis added).
22
  The Court reviewed the docket sheets in Herring‟s Superior Court criminal cases and
counted four prior convictions of felony RSP.
23
  Colon v. State, 2006 WL 2714454, at *3 (Del. Sept. 22, 2006) (citing Hall v. State, 788
A.2d 118, 128 (Del. 2001)).
24
     Id. at *3 (citing Walker v. State, 790 A.2d 1214, 1221 (Del. 2002)).
25
     Penson, 488 U.S. at 80.
                                               8
appeal is “wholly without merit.”26 The Court is satisfied that Appellate

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

properly determined that Herring 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/ Leo E. Strine, Jr.
                                          Chief Justice




26
     Del. Supr. Ct. R. 26(c).
                                   9
