           IN THE SUPREME COURT OF THE STATE OF DELAWARE

LARRY J. SARTIN, III                      §
                                          §
      Defendant Below,                    §   No. 128, 2014
      Appellant,                          §
                                          §
      v.                                  §   Court Below—Superior Court
                                          §   of the State of Delaware,
STATE OF DELAWARE,                        §   in and for Kent County
                                          §   Cr. Nos. 1103008787,
      Plaintiff Below,                    §   1103008790
      Appellee.                           §

                           Submitted: September 26, 2014
                           Decided:   October 21, 2014

Before HOLLAND, RIDGELY, and VALIHURA, Justices.

                                      ORDER

      This 21st day of October 2014, upon consideration of the briefs of the parties

and the record in this case, it appears to the Court that:

      1.     In 2011, the appellant, Larry J. Sartin, III, was indicted by Kent

County and New Castle County grand juries for multiple felonies arising from

burglaries and robberies in Kent County and New Castle County. On August 18,

2011, Sartin pled guilty in the Kent County Superior Court to one count of

Robbery in the First Degree, two counts of Robbery in the Second Degree, and one

count of Burglary in the Second Degree. The plea agreement resolved cases in

Kent County and New Castle County.
      2.    In the Truth-In-Sentencing Guilty Plea Form and during the plea

colloquy with the Superior Court, Sartin agreed that he was a habitual offender

under 11 Del. C. § 4214(a). The State and Sartin agreed to recommend that Sartin

serve a total of twenty-one years of Level V incarceration. The State also agreed

to dismiss the remaining charges in Kent County and New Castle County. On

August 18, 2011, Sartin was declared a habitual offender under 11 Del. C. §

4214(a) and sentenced as follows: (i) for Robbery in the First Degree, twenty-five

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

supervision; (ii) for Burglary in the Second Degree, eight years of Level V

incarceration; and (iii) for each of the counts of Robbery in the Second Degree,

five years of Level V incarceration. Sartin did not appeal his convictions or

sentence.

      3.    On August 10, 2012, Sartin filed his first motion for postconviction

relief. The grounds for this motion were: (i) ineffective assistance of counsel

based upon counsel’s failure to investigate Sartin’s mental health issues; (ii)

ineffective assistance of counsel based upon counsel’s failure to communicate; (iii)

ineffective assistance of counsel based upon counsel’s failure to recognize Sartin’s

use of prescribed mental health psycho-tropic medications before the plea colloquy

and acceptance of the guilty plea; and (iv) diminished capacity.                The

postconviction motion was referred to a Superior Court Commissioner, who gave


                                         2
Sartin the opportunity (and an extension) to submit a memorandum of law in

support of his motion, requested an affidavit from Sartin’s former counsel, asked

the State to submit a response to the motion, and set a deadline for Sartin to submit

a reply to his former counsel’s affidavit and the State’s response. Sartin did not

submit an opening memorandum of law, but did file a reply to his former counsel’s

affidavit.

       4.    After receiving the submissions of the parties, the Commissioner

issued a Report and Recommendation. The Commission considered the merits of

Sartin’s ineffective assistance of counsel claims and concluded that they lacked

merit and were barred by Superior Court Criminal Rule 61(i)(3). The Superior

Court conducted a de novo review of the proceedings, adopted the Commissioner’s

Report and Recommendation, and denied Sartin’s motion for postconviction relief.

This appeal followed.

       5.    Sartin filed a motion for a transcript of the plea and sentencing

hearing at State expense, which the Superior Court denied. The State included a

copy of the transcript in the appendix with its answering brief on appeal. Sartin

also claims to have filed a motion for appointment of counsel in the Superior

Court, but the docket does not reflect such a motion.          Sartin’s request for

appointment of counsel in this Court and a remand to the Superior Court was

denied.


                                         3
         6.      On appeal, Sartin first argues that the Superior Court abused its

discretion and violated his constitutional rights when it denied his motion for

postconviction relief as procedurally barred. This Court reviews the Superior

Court's denial of a Superior Court Criminal Rule 61 (“Rule 61”) motion for

postconviction relief for abuse of discretion.1 Questions of law or claims of a

constitutional violation are reviewed de novo.2

         7.      Sartin’s postconviction claims are based primarily on his assertion

that his counsel was ineffective. Sartin claims his counsel was ineffective because:

(i) he failed to investigate Sartin’s mental health issues; (ii) he failed to

communicate with Sartin; and (iii) he failed to recognize that Sartin was under the

influence of prescribed medications at the time of his guilty plea. Sartin claims

that but for his counsel’s ineffective assistance, he would have rejected the plea

offer and insisted on proceeding to trial with a mental illness defense. Sartin also

appears to contend that he suffered from diminished capacity at the time of his

guilty plea and could not knowingly, intelligently, and voluntarily accept a guilty

plea.

         8.      To prevail on a claim of ineffective assistance of counsel after entry of

a guilty plea, a defendant must demonstrate that his defense counsel’s

1
    Dawson v. State, 673 A.2d 1186, 1190 (Del. 1996).
2
    Zebroski v. State, 12 A.3d 1115, 1119 (Del. 2010).


                                                 4
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.3               There is a strong presumption

that counsel’s representation was professionally reasonable.4                   Conclusory and

unsupported claims of prejudice are insufficient to establish ineffective assistance;

a defendant must make and substantiate concrete claims of actual prejudice.5

         9.      Sartin’s conclusory allegations of ineffective assistance of counsel do

not establish that his counsel’s representation was objectively unreasonable or

prejudicial.      Contrary to Sartin’s contentions, the record reflects that Sartin’s

counsel investigated Sartin’s mental health issues. Sartin’s counsel referred Sartin

for a psycho-forensic evaluation, which included an examination of Sartin’s history

of substance abuse and mental health problems. Although the box next to the

question asking whether Sartin had even been a patient in a mental hospital was

checked “no” in the Truth-In-Sentencing Guilty Plea Form, there was also a

handwritten notation of “98’” next to that question.6 Sartin’s counsel informed the




3
    Hill v. Lockhart, 474 U.S. 52, 58–59 (1985); Allbury v. State, 551 A.2d 53, 59 (1988).
4
    Strickland v. Washington, 466 U.S. 668, 689-90 (1984).
5
    Dawson v. State, 673 A.2d 1186, 1196 (Del. 1986).
6
    Appendix to State’s Answering Brief at B-22.


                                                   5
Superior Court at the plea colloquy that Sartin had been treated at a mental hospital

in 1998.

         10.     To the extent Sartin claims his counsel’s lack of investigation

deprived him of a mental illness defense, Sartin’s counsel stated in his affidavit

that there was no indication Sartin’s mental health issues rose to the level of a

viable defense. Instead, Sartin’s counsel tried to use the issues to lessen the

severity of Sartin’s sentence and to ensure that treatment began while Sartin was

incarcerated. Sartin does not identify any authority suggesting a mental illness

defense would likely have succeeded at trial.

         11.     There is also no merit to Sartin’s contention that his counsel failed to

communicate with him. According to the affidavit of Sartin’s counsel, he met with

Sartin five times in addition to case reviews. Sartin indicated in the Truth-In-

Sentencing Guilty Plea Form that he was his satisfied with his counsel’s

representation. During the plea colloquy, Sartin told the Superior Court that he had

discussed the matter fully with his counsel and was satisfied that his counsel had

done all that he could reasonably do for him.             Absent clear and convincing

evidence to the contrary, Sartin is bound by these representations.7

         12.     Sartin’s contention that his counsel was ineffective for failing to

recognize that he was under the influence of psychotropic medications at the time

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


                                                  6
of his guilty plea is also contradicted by the record. Sartin’s prescription for

lithium was noted in the Truth-In-Sentencing Guilty Plea Form.          At the plea

hearing, Sartin’s counsel informed the Superior Court that Sartin was on lithium

while in custody and that Sartin was focused and able to discuss the matter

cogently in all of their discussions. By pleading guilty, Sartin was able to avoid a

sentence of life imprisonment. We conclude that Sartin’s ineffective assistance of

counsel claims are without merit and that the Superior Court did not err in rejecting

those claims.

      13.    Sartin’s conclusory assertion of diminished capacity resulting in an

involuntary guilty plea is not supported by the record. As discussed above, the

parties and Superior Court were informed of Sartin’s history of mental health and

substance abuse issues, Sartin’s treatment at a mental hospital in 1998, and his

lithium prescription. Sartin’s counsel told the Superior Court that Sartin was

focused and cogent in their discussions and that he believed Sartin was entering

into the plea knowingly, intelligently, and voluntarily.

      14.    The transcript of the plea hearing and sentencing does not suggest

otherwise.      During the plea colloquy, Sartin told the Superior Court that he

understood the charges he was pleading guilty to, he understood that he faced a

maximum penalty of life in imprisonment because he was a habitual offender and

that there was a minimum mandatory penalty of twenty-one years, he freely and


                                          7
voluntarily pled guilty because he was guilty of the offenses, he understood that he

was waiving the constitutional rights listed in the Truth-in-Sentencing Guilty Plea

Form, which included the right to present evidence in his defense, and he had

discussed the matter fully with his counsel. Sartin also expressed remorse to the

victims of his crimes. The transcript does not reflect that Sartin was unable to

answer or had any difficulty answering the Superior Court’s questions. Absent

clear and convincing evidence to the contrary, Sartin is bound by his

representations in the Truth-In-Sentencing guilty plea form and his sworn

statements to the judge during the guilty plea colloquy.8 There is no clear and

convincing evidence that Sartin’s mental health or lithium prescription rendered

his guilty plea involuntary. We therefore conclude that the Superior Court did not

err in denying Sartin’s motion for postconviction relief.

          15.     Sartin next argues that the Superior Court erred in denying his request

for a transcript of his plea and sentencing hearing. A copy of the transcript was

included in the appendix accompanying the State’s answering brief, making

Sartin’s transcript claim moot.9

          16.     Finally, Sartin argues that the Superior Court erred by not appointing

counsel to represent him in connection with his first motion for postconviction

8
    Id.
9
    Despite the inclusion of the transcript, Sartin chose not to file a reply brief.


                                                     8
relief. Although Sartin claims he filed a motion for appointment for counsel in the

Superior Court after his motion for postconviction relief was denied, there is no

sign in the record of such a motion. Sartin does not cite any authority in support of

the proposition that the Superior Court was required to appoint counsel for him sua

sponte. At the time Sartin filed his postconviction motion in August 2012, Rule

61(e)(1) provided that the Superior Court would appoint counsel only in the

exercise of discretion and for good cause shown.10 Rule 61(e)(1) was amended in

May 2013 to provide that the Superior Court would appoint counsel for an indigent

defendant’s first postconviction proceeding, but that amendment applied to

postconviction motions filed on or after May 6, 2013 and was not made

retroactive.11 Under the circumstances of this case, Sartin has not shown that he

was entitled to the sua sponte appointment of counsel.

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

Court is AFFIRMED.


                                            BY THE COURT:

                                            /s/ Henry duPont Ridgely
                                            Justice


10
     Super. Ct. Crim. R. 61(e)(1) (2012).
11
  Cook v. State, 2014 WL 2949413 (Del. June 26, 2014); Roten v. State, 2013 WL 5808236
(Del. Oct. 28, 2013).

                                              9
