           IN THE SUPREME COURT OF THE STATE OF DELAWARE

JEFFREY W. THOMAS,                       §
                                         §
      Defendant Below-                   §        No. 156, 2015
      Appellant,                         §
                                         §
      v.                                 §        Court Below: Superior Court
                                         §        of the State of Delaware
STATE OF DELAWARE,                       §
                                         §        Cr. ID. No. 1403008516
      Plaintiff Below-                   §
      Appellee.                          §

                          Submitted: October 7, 2015
                          Decided:   December 17, 2015

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

                                  ORDER

      This 17th day of December 2015, upon consideration of the appellant’s

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

response thereto, it appears to the Court that:

      (1)    After a two-day jury trial in January 2015, the defendant-appellant,

Jeffrey Thomas, was convicted of Burglary in the Second Degree, Theft of a Motor

Vehicle, Theft, and Conspiracy in the Second Degree. On March 3, 2015, the State

filed a motion to declare Thomas to be a habitual offender. On March 12, 2015,

the Superior Court sentenced Thomas as a habitual offender to a total period of

twenty-two years at Level V incarceration, to be suspended after serving

twenty-one years in prison for probation. This is Thomas’s direct appeal.
         (2)   Thomas’s counsel on appeal has filed a brief and a motion to

withdraw under Rule 26(c). Thomas’s counsel asserts that, based upon a complete

and careful examination of the record, there are no arguably appealable issues. By

letter, Thomas’s attorney informed him of the provisions of Rule 26(c) and

provided Thomas with a copy of the motion to withdraw and the accompanying

brief.    Thomas also was informed of his right to supplement his attorney’s

presentation. Thomas filed several points for this Court’s consideration. The State

has responded to Thomas’s points, as well as to the position taken by Thomas’s

counsel, and has moved to affirm the Superior Court’s judgment.

         (3)   The trial record fairly reflects that, on March 8, 2014, Dover police

responded to a report of a burglary and car theft. The victim lived alone in a first

floor apartment on Division Street. She told police that, sometime after she went

to sleep the previous evening, someone had entered her apartment and taken her

computer, cell phone, wallet, and car keys, among other things. Her car, a 2005

Nissan Sentra, was missing from where she had parked it outside her apartment.

Later that morning, the victim discovered that her credit card had been used at a

nearby convenience store and a Burger King restaurant.           After interviewing

witnesses and reviewing surveillance evidence from the two businesses, the police

were able to develop Monica Heath and Thomas as suspects. At trial, the victim

testified that the day before the burglary, Thomas, whom she did not know, had



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helped her carry groceries into her apartment. The victim never informed the

police about this encounter before trial.

      (4)       The investigating officer, Detective Toto, interviewed Thomas on

March 12, 2014 at the police station.           The interview was recorded, but the

recording quality was poor. At trial, Detective Toto testified that Thomas told him

that he and Heath went to the apartment on Division Street and saw the victim

sleeping in her bed. Thomas lifted Heath up through an open window, and Heath

unlocked the front door of the apartment to let Thomas in. Thomas took the

victim’s car keys. The recording of Thomas’s interview was admitted at trial

without objection.

      (5)       Thomas testified in his own defense at trial. He admitted lifting Heath

up through the window. He also admitted that he knew the apartment did not

belong to Heath. He asserted, however, that he had never entered the apartment

and that Heath drove off in the victim’s car alone. He further denied that he had

ever been in the apartment or helped the victim with her groceries the day before

the burglary.

      (6)       The jury found Thomas guilty of second degree burglary, theft of a

motor vehicle, second degree conspiracy, and theft. The State filed a motion to

declare Thomas to be a habitual offender on March 3, 2015.              After Thomas

conceded before sentencing that he previously had been convicted of four predicate



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felonies, the Superior Court declared Thomas to be a habitual offender and

sentenced him accordingly to a total period of twenty-two years at Level V

incarceration, to be suspended after serving twenty-one years in prison for

decreasing levels of supervision. This appeal followed.

      (7)   Thomas fairly raises the following eight points for the Court’s

consideration on appeal: (i) the Superior Court erred in allowing Detective Toto to

testify about what Thomas said during the videotaped interview; (ii) the Superior

Court should have given a jury instruction under 11 Del. C. § 274; (iii) Thomas did

not receive adequate notice of the State’s habitual offender motion; (iv) the State

failed to preserve evidence; (v) the indictment was defective; (vi) Thomas’s

statement to police was not knowing, intelligent, and voluntary; (vii) Thomas was

denied the right to confront Heath, his codefendant; and (viii) Thomas should not

have been declared a habitual offender because his New Jersey convictions for

third degree burglary were not qualifying predicate convictions.

      (8)   The standard and scope of review applicable to the consideration of a

motion to withdraw and an accompanying brief under Rule 26(c) is twofold: (a)

this Court must be satisfied that defense counsel has made a conscientious

examination of the record and the law for arguable claims; and (b) this Court must

conduct its own review of the record and determine whether the appeal is so totally




                                         4
devoid of at least arguably appealable issues that it can be decided without an

adversary presentation.1

       (9)   Thomas’s first and sixth arguments relate to his videotaped statement

to Detective Toto after his arrest. Thomas asserts that his statement should not

have been admitted because it was involuntary because he did not know he was

being videotaped and because he was high on cocaine. Thomas also argues that

the Superior Court erred in overruling his objection at trial to Detective Toto’s

testimony regarding his recollection of what Thomas said to him during the

videotaped interview.

      (10) Thomas did not move before trial to suppress his statement to the

police as involuntary, nor did he object to the admission of the videotaped

statement at trial. In the absence of plain error, which we do not find, we will not

consider Thomas’s challenge to the admission of his statement for the first time on

appeal.2 Moreover, we find no error or abuse in the Superior Court’s decision to

overrule defense counsel’s objections to Toto’s testimony regarding his

recollection of what Thomas said to him during the interview.                  Thomas’s




1
  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).
2
  Del. Supr. Ct. R. 8 (2015).


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statements to Toto were the admissions of a party opponent and were admissible

under Delaware Rule of Evidence 801(d)(2).3

       (11) Thomas next argues that the Superior Court erred in failing to give a

jury instruction under 11 Del. C. § 2744 regarding his state of mind as to the second

degree burglary charge. Defense counsel did not request such an instruction at

trial, so this claim may only be reviewed on appeal for plain error.5 We find no

plain error in this case. Thomas was not charged with first degree burglary, and

there was no basis for a charge regarding third degree burglary because, as the

Superior Court judge properly found, the undisputed factual evidence established

that the victim’s apartment was a “dwelling.”6 Thus, the only state of mind that the

jury had to consider was whether Thomas acted “knowingly” under the second

degree burglary statute.7 The jury was properly instructed on all of the elements of

second degree burglary, including a “knowing” state of mind, and on the issue of

accomplice liability. Moreover, Thomas admitted during his testimony at trial that

he knowingly assisted Heath in entering an occupied apartment that did not belong

3
   D.R.E. 801(d)(2) provides that a party-opponent’s out-of-court statements are not hearsay.
Thus, such statements are admissible at trial.
4
  11 Del. C. § 274 provides in relevant part that when two or more people are criminally liable
for an offense that is divided into degrees, “each person is guilty of an offense of such degree as
is compatible with that person’s own culpable mental state….”
5
  Wainwright v. State, 504 A.2d 1096, 1100 (Del. 1996).
6
  Under 11 Del. C. § 829(b) (Supp. 2014), a “dwelling” means a building that is usually occupied
by a person lodging there at night.
7
  The second degree burglary statute, 11 Del. C. § 825, provides in relevant part under subsection
(a)(1) that a “person is guilty of burglary in the second degree when the person knowingly enters
or remains unlawfully … in a dwelling with intent to commit a crime therein.”


                                                6
to her. Under these circumstances, the absence of an instruction under § 274 was

not error.

         (12) Thomas next contends that he did not receive sufficient prior notice of

the State’s motion to seek habitual offender sentencing in order to prepare a

defense. There is no merit to this claim. The State filed its motion to seek habitual

offender sentencing on March 3 after a presentence investigation. Sentencing was

scheduled for March 12. The State was required to file its motion “after conviction

and before sentence,”8 which it did. Thomas did not ask for a continuance of the

sentencing date in order to prepare a defense, nor did he complain about

inadequate notice of the State’s intent to seek habitual offender sentencing prior to

the Superior Court’s consideration of the motion. In fact, Thomas’s only response

to the State’s habitual offender motion was to admit on the record that he had been

convicted of each of the four predicate felonies set forth in the State’s motion.

Thus, we reject this claim on appeal.

         (13) Moreover, Thomas’s claim that his New Jersey convictions for third

degree burglary were not qualifying predicate offenses for habitual offender

sentencing is simply incorrect. The relevant habitual offender statute, 11 Del. C.

§ 4214(a), provides that “[a]ny person who has been 3 times convicted of a felony

… under the laws of this State, and/or any other state … who shall thereafter be

8
    11 Del. C. § 4215(b) (2007).


                                           7
convicted of a subsequent felony of this State is declared to be an [sic] habitual

offender….”9      Thus, Thomas’s felony convictions in New Jersey qualified as

predicate offenses under Section 4214(a). His claim to the contrary has no merit.

       (14) Thomas next argues that the State erred in failing to preserve evidence

of still photographs taken by security cameras at the convenience store where the

victim’s credit card was used.      In support of this assertion, Thomas cites to

Deberry v. State,10 although he does not argue how Deberry applies to his case.

We held in Deberry that the State is obligated to preserve evidence that is material

to a defendant’s guilt or innocence and that if the State fails to preserve material

evidence, then the defendant is entitled to have the jury instructed that they should

presume the missing evidence was exculpatory.11

       (15)    Thomas never raised this claim below. Accordingly, we review only

for plain error.12 In this case, there is nothing in the record to suggest that Thomas

requested the State to produce the still photographs or that the State failed to

produce them. Moreover, the testimony at trial established that Thomas was not

even visible in the still photographs, thus it is unclear that the photographs were

material in any way to the charges against Thomas. We find no plain error.




9
  11 Del. C. § 4214(a) (2007).
10
   457 A.2d 744 (Del. 1983).
11
   Id. at 754.
12
   Del. Supr. Ct. R. 8 (2015).


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       (16) Thomas next contends that the Superior Court erred in amending the

indictment to delete Monica Heath’s name. Although defense counsel initially

expressed concern about deleting Heath’s name from the indictment, he did not

object to the amendment. Thus, we review this claim on appeal for plain error. 13

Thomas cites no legal authority in support of his contention that the State was

required to name his codefendant in the indictment. Moreover, under Delaware

law, a defendant who is indicted as a principal may be convicted as an accomplice

and vice versa.14 Thus, the amendment to the indictment did not include additional

or different offenses and did not prejudice Thomas’s substantial rights.15 We find

no plain error on appeal.

       (17) Finally, Thomas contends that he was denied his right to confront

Heath at trial. At its core, Thomas faults his trial counsel for failing to call Heath

as a witness.      This Court, however, will not consider claims of ineffective

assistance of counsel for the first time on direct appeal.16

       (18) This Court has reviewed the record carefully and has concluded that

Thomas’s appeal is wholly without merit and devoid of any arguably appealable

issue. We also are satisfied that Thomas’s counsel has made a conscientious effort


13
   Del. Supr. Ct. R. 8 (2015).
14
   11 Del. C. § 275 (2007).
15
   Del. Super. Ct. Crim. R. 7(e) (2015) (providing that the Superior Court may permit the
amendment of the indictment any time before the jury’s verdict “if no additional or different
offense is charged and if substantial rights of the defendant are not prejudiced.”).
16
   Desmond v. State, 654 A.2d 821, 829 (Del. 1994).


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to examine the record and the law and has properly determined that Thomas could

not raise a meritorious claim in this appeal.

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

Court is AFFIRMED. The motion to withdraw is moot.

                                                BY THE COURT:
                                                /s/ Leo E. Strine, Jr.
                                                Chief Justice




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