             IN THE SUPREME COURT OF THE STATE OF DELAWARE

MARSAAN NEWMAN,                         §
                                        §
        Defendant Below,                §   No. 367, 2015
        Appellant,                      §
                                        §
        v.                              §   Court Below—Superior Court
                                        §   of the State of Delaware
STATE OF DELAWARE,                      §   Cr. ID No. 1202018751
                                        §
        Plaintiff Below,                §
        Appellee.                       §

                           Submitted: December 23, 2015
                           Decided:   March 8, 2016

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

                                      ORDER

        This 8th day of March 2016, upon consideration of the appellant’s opening

brief, the appellee’s motion to affirm, and the record below, it appears to the Court

that:

        (1)    The appellant, Marsaan Newman, filed this appeal from a Superior

Court order denying his first motion for postconviction relief under Superior Court

Criminal Rule 61. The State of Delaware has filed a motion to affirm the judgment

below on the ground that it is manifest on the face of Newman’s opening brief that

his appeal is without merit. We agree and affirm.

        (2)    The record reflects that, on September 18, 2012, Newman pled guilty

to Robbery in the First Degree and Assault in the Second Degree in exchange for
dismissal of other charges. The charges arose from Newman’s assault and robbery

of an elderly man. The plea agreement reflected that the State intended to seek

habitual offender sentencing under 11 Del. C. § 4214(a) for the Robbery in the

First Degree charge. Newman acknowledged that he was subject to sentencing

under 11 Del. C. § 4214(a) based upon on three previous felony convictions.

Newman was sentenced as a habitual offender to a total of fifty-three years of

Level V incarceration, suspended after fifty years for decreasing levels of

supervision. Newman did not appeal the Superior Court’s judgment.

      (3)    On September 11, 2013, Newman filed his first motion for

postconviction relief. Newman claimed he was entitled to postconviction relief

because: (i) his counsel was ineffective for failing to investigate his mental health

issues; (ii) his plea agreement was unfulfilled because he expected to receive a

sentence of no more than twenty-five years of Level V incarceration; and (iii) the

sentence was excessive in light of the nature of his crimes. The Superior Court

appointed postconviction counsel to represent Newman.

      (4)    On March 17, 2014, postconviction counsel filed a motion to

withdraw on the basis that he could not ethically advocate Newman’s arguments

and had not found any other meritorious grounds for relief. Newman filed a

response to the motion to withdraw, arguing that his trial counsel’s failure to

investigate his mental health meant that he did not pursue a competency or insanity


                                         2
defense and that his trial counsel repeatedly advised him that he would lose at trial

and to plead guilty.         At the direction of the Superior Court Commissioner,

Newman’s trial counsel filed an affidavit in response to Newman’s motion for

postconviction relief.

         (5)    In an order dated March 10, 2015, the Superior Court Commissioner

recommended that the Superior Court grant postconviction counsel’s motion to

withdraw and deny Newman’s motion for postconviction relief. The Superior

Court Commissioner concluded that Newman’s ineffective assistance of counsel

and unfulfilled plea agreement claims were without merit and his excessive

sentencing claim was outside the scope of Rule 61. In an order dated June 11,

2015, the Superior Court accepted the recommendation of the Superior Court

Commissioner, granted the motion to withdraw, and denied Newman’s motion for

postconviction relief. This appeal followed.

         (6)    This Court reviews the Superior Court’s denial of postconviction

relief for abuse of discretion and questions of law de novo.1 When reviewing the

Superior Court’s denial of a motion for postconviction relief, this Court must first

consider the procedural requirements of Rule 61 before addressing any substantive

issues.2 On appeal, Newman argues that his trial counsel was ineffective because

he did not investigate Newman’s mental health issues and he misadvised Newman

1
    Dawson v. State, 673 A.2d 1186, 1190 (Del. 1996).
2
    Younger v. State, 580 A.2d 552, 554 (Del. 1990).
                                                3
to plead guilty. Newman’s failure to raise his unfulfilled plea agreement and

excessive sentencing claims in his opening brief constitutes a waiver of those

claims. 3

       (7)       We agree with the Superior Court that the procedural bars of Rule

61(i) did not bar Newman’s timely claims of ineffective assistance of counsel. To

prevail on a claim of ineffective assistance of counsel after entry of a guilty plea,

Newman must demonstrate that his trial counsel’s representation fell below an

objective standard of reasonableness and there is a reasonable probability that but

for counsel’s errors, he would not have pled guilty and would have insisted on

proceeding to trial.4     There is a strong presumption that counsel’s representation

was professionally reasonable. 5 Conclusory and unsupported claims of prejudice

are insufficient to establish ineffective assistance; Newman must make and

substantiate concrete claims of actual prejudice. 6

       (8)    As to Newman’s mental health, trial counsel stated in his affidavit that

he arranged for a psycho-forensic evaluator with the Office of Public Defender to

interview Newman and the psycho-forensic evaluator concluded that Newman was

clearly competent. Trial counsel further stated that Newman gave no indication

that his mental health could constitute a colorable defense. At the guilty plea
3
  Supr. Ct. R. 14(b)(vi)(A)(3) (“The merits of any argument that is not raised in the body of the
opening brief shall be deemed waived and will not be considered by the Court on appeal.”).
4
  Hill v. Lockhart, 474 U.S. 52, 58–59 (1985); Allbury v. State, 551 A.2d 53, 59 (Del. 1988).
5
  Strickland v. Washington, 466 U.S. 668, 689-90 (1984).
6
  Dawson, 673 A.2d at 1196.
                                               4
colloquy, trial counsel informed the Superior Court that Newman told him he had

spent time at MeadowWood Hospital in the past year, but that he did not have any

questions regarding Newman’s competency. Given trial counsel’s representations

and Newman’s failure to offer any details concerning the alleged mental health

issues he claims trial counsel should have discovered, the Superior Court did not

err in concluding that Newman failed to establish that his counsel’s representation

was objectively unreasonable or prejudicial.

      (9)    Newman’s claim that his trial counsel misadvised him to plead guilty

is similarly without merit because it is again based on Newman’s conclusory and

unsupported allegations of mental health issues. To the extent Newman claims his

guilty plea was not knowing, intelligent, and voluntary, this claim is contrary to the

terms of the Truth-in-Sentencing Guilty Plea Form and his guilty plea colloquy

with the Superior Court. In the Truth-in-Sentencing Guilty Plea Form, Newman

indicated, among other things, that he was not under the influence of any drugs or

alcohol, he freely and voluntarily decided to plead guilty, and he was satisfied with

his trial counsel’s representation. During the guilty plea colloquy, Newman told

the Superior Court, among other things, that he was guilty of Robbery in the First

Degree and Assault in the Second Degree, he understood that he could face a

sentence of up to life imprisonment, he was not threatened or forced to plea guilty,

he was not under the influence of any drugs or alcohol, and he was satisfied with


                                          5
trial counsel’s representation.           Absent clear and convincing evidence to the

contrary, which he has not provided, Newman is bound by these representations.7

We therefore conclude that the Superior Court did not err in denying Newman’s

motion for postconviction relief.

         NOW, THEREFORE, IT IS ORDERED that the motion to affirm is

GRANTED and the judgment of the Superior Court is AFFIRMED.


                                               BY THE COURT:

                                               /s/ Collins J. Seitz, Jr.
                                                      Justice




7
    Somerville v. State, 703 A.2d 629, 632 (Del. 1997).
                                                  6
