           IN THE SUPREME COURT OF THE STATE OF DELAWARE

ALFRED MAURICE LEWIS, JR.,              §
                                        §         No. 482, 2014
      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. 1311017538
                                        §
      Plaintiff Below,                  §
      Appellee.                         §

                           Submitted: May 28, 2015
                             Decided: July 30, 2015

Before HOLLAND, VALIHURA and VAUGHN, Justices.

                                     ORDER

      This 30th day of July 2015, upon consideration of the appellant’s brief filed

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

State’s response, it appears to the Court that:

      (1)    The appellant, Alfred Maurice Lewis, Jr., is incarcerated at the James

T. Vaughn Correctional Center. While incarcerated on November 21, 2013, Lewis

was found to be in possession of a cell phone and a cell phone charger. Lewis was

arrested and indicted on two counts of Promoting Prison Contraband.

      (2)    On June 5, 2014, Lewis pled guilty to both counts of Promoting

Prison Contraband. At the guilty plea proceeding, the State noted that it would be

filing a motion to declare Lewis a habitual offender.
          (3)    On July 17, 2014, the State filed a motion to declare Lewis a habitual

offender based on Lewis’ 1997 guilty plea on a charge of Receiving Stolen

Property, 2002 guilty plea on a charge of a Burglary in the Second Degree, and

2011 guilty plea on Assault in the Second Degree as a lesser included offense of

Attempted Murder in the First Degree. Lewis did not oppose the habitual offender

motion. At sentencing on August 29, 2014, the Superior Court declared Lewis a

habitual offender under 11 Del. C. § 4214(a) and sentenced him to a total of six

months at Level V, ninety days for each conviction of Promoting Prison

Contraband. This is Lewis’ direct appeal.

          (4)    On appeal, Lewis’ appellate counsel (“Counsel”)1 has filed a brief and

a motion to withdraw under Supreme Court Rule 26(c) (“Rule 26(c)”).2 Counsel

asserts that, based upon a complete and careful examination of the record, there are

no arguably appealable issues. Lewis has submitted several claims for the Court’s

consideration.           The State has responded to Lewis’ claims and has moved to

affirm the Superior Court’s judgment.

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

under Rule 26(c), this Court must be satisfied that Counsel has made a




1
    Lewis was represented by different counsel in the Superior Court.
2
    See Del. Supr. Ct. R. 26(c) (governing criminal appeals without merit).
                                                  2
conscientious examination of the record and the law for arguable claims.3 The

Court must also 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.”4

         (6)     On appeal, Lewis contends that his indictment for two counts of

Promoting Prison Contraband constituted “multiplicity,” or the charging of a single

offense in more than one count of the indictment, and subjected him to

impermissible selective prosecution.5          Also, Lewis contends that the Superior

Court violated his right to due process when, in April 2014, it did not rule on his

pro se “motion to dismiss or merge counts of indictment” but instead referred the

motion to his defense counsel under Superior Court Criminal Rule 47.6 Lewis’




3
 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).
4
    Penson v. Ohio, 488 U.S. at 81.
5
  “The division of a single offense into multiple counts of an indictment violates the double
jeopardy provisions of the Constitutions of the State of Delaware and of the United States.”
Feddiman v. State, 558 A.2d 278, 288 (Del. 1989). Impermissible selective prosecution is a
violation of the Equal Protection Clause of the Fourteenth Amendment to the United States
Constitution. “The Equal Protection Clause of the Fourteenth Amendment . . . protects against
arbitrary and capricious classifications, and requires that similarly situated persons be treated
equally.” Sisson v. State, 903 A.2d 288, 314 (Del. 2006) (citing Hughes v. State, 653 A.2d 241,
247 (Del. 1994)).
6
 See Del. Super. Ct. Crim. R. 47 (“The court will not consider pro se applications by defendants
who are represented by counsel unless the defendant has been granted permission to participate
with counsel in the defense.”).
                                               3
claims were not raised in the Superior Court proceedings. Our review is limited to

plain error.7

       (7)      Lewis’ claims of defects or errors in the indictment were all waived

by the entry of his guilty plea on June 4, 2014.8 Lewis cannot demonstrate plain

error with respect to his indictment for two counts of Promoting Prison

Contraband.

       (8)      Lewis claims that the Superior Court should have applied a recent

amendment of 11 Del. C. § 3901(d) when sentencing him on August 29, 2014.9

We have reviewed the claim for plain error and have found none. Lewis was

properly sentenced under the version of Section 3901(d) in effect on November 21,

2013, the date of the offenses.10

       (9)      Lewis claims that the predicate convictions supporting the State’s

habitual offender motion did not satisfy the statutory requirements of 11 Del. C. §

7
  Del. Supr. Ct. R. 8. “[P]lain error is limited to material defects which are apparent on the face
of the record; which are basic, serious and fundamental in their character, and which clearly
deprive an accused of a substantial right, or which clearly show manifest injustice.” Wainwright
v. State, 504 A.2d 1096, 1100 (Del. 1986).
8
  Bowers v. State, 2007 WL 2359553, at *1 (Del. Aug. 20, 2007) (citing Downer v. State, 543
A.2d 309, 312-13 (Del. 1988)). Notably, Lewis does not contend that his guilty plea was made
involuntarily or unknowingly.
9
 79 Del. Laws, ch. 297, § 1 (2014) (codified at 11 Del. C. § 3901(d)). The amendment, which
became effective July 9, 2014, allows for concurrent terms of confinement.
10
  Ingram v. State, 2014 WL 7010667 (Del. Dec. 9, 2014) (citing State v. Ismaaeel, 840 A.2d
644, 651-52 (Del. Super. 2004), aff’d, 2004 WL 1587040 (Del. June 25, 2004); Lopez v. State,
2014 WL 4898213 (Del. Sept. 29, 2014)). In 2013, 11 Del. C. § 3901(d) provided that “[n]o
sentence of confinement of any criminal defendant . . . shall be made to run concurrently with
any other sentence of confinement imposed on such criminal defendant.”
                                                4
4214(a).       We have reviewed the claim for plain error and have found none.

Delaware law provides that it is the State’s burden to establish that each predicate

offense meets the requirements of the habitual offender statute beyond a reasonable

doubt.11 Moreover, when moving to declare a defendant to be a habitual offender

under Section 4214(a), the State must establish that a defendant had some chance

of rehabilitation following the sentencing on each prior conviction.12              “Some

chance of rehabilitation” requires a “specified number of separate encounters with

the criminal justice system and a corresponding number of chances to reform.”13

In this case, the record reflects that, in its motion to declare Lewis a habitual

offender, the State presented unambiguous documentary evidence of Lewis’

predicate convictions and that Lewis had the requisite opportunity for

rehabilitation between each of the offenses.

          (10) Finally, Lewis attempts to challenge his sentencing as a habitual

offender on claims that his 1997 conviction for receiving stolen property was

“invalid,” his 2002 conviction for second degree burglary was “incorrect,” and that

he is innocent of the assault conviction to which he pled guilty in 2011. We have

reviewed the claims for plain error and have found none. Lewis’ unproven claims


11
     Hall v. State, 788 A.2d 118, 127 (Del. 2001).
12
     Buckingham v. State, 482 A.2d 327, 330-31 (Del. 1984).
13
  Payne v. State, 1994 WL 91244, at *1 (quoting Buckingham v. State, 482 A.2d 327, 330 (Del.
1984)).
                                                     5
with respect to his prior convictions cannot serve as a basis to challenge his

sentencing as a habitual offender.14

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

found “no nonfrivolous issue for appeal,”15 the Court concludes that this appeal is

“wholly without merit.”16 The Court is satisfied that Counsel made a conscientious

effort to examine the record and the law and properly determined that Lewis 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/Karen L. Valihura
                                               Justice




14
   See Carpenter v. State, 441 A.2d 636 (Del. 1982) (“The United States Supreme Court has held
that convictions determined invalid . . . may not be considered in establishing the sentence for a
later conviction.”).
15
     Penson v. Ohio, 488 U.S. 75, 80 (1988).
16
     Del. Supr. Ct. R. 26(c).
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