            IN THE SUPREME COURT OF THE STATE OF DELAWARE

DEREK CAPERS,                           §
                                        §    No. 229, 2018
      Defendant Below,                  §
      Appellant,                        §    Court Below: Superior Court of the
                                        §    State of Delaware
      v.                                §
                                        §    Cr. ID No. 1406005949 (N)
STATE OF DELAWARE,                      §
                                        §
      Plaintiff Below,                  §
      Appellee.                         §

                             Submitted: December 13, 2018
                             Decided:   February 25, 2019

Before VALIHURA, SEITZ, and TRAYNOR, Justices.

                                      ORDER

      This 25th day of February 2019, upon consideration of the no-merit brief and

motion to withdraw under Supreme Court Rule 26(c) and the State’s response, it

appears to the Court that:

      (1)    The appellant, Derek Capers, was indicted on charges of Possession of a

Firearm by a Person Prohibited (“PFBPP”), Possession of Ammunition by a Person

Prohibited (“PABPP”), Carrying a Concealed Deadly Weapon (“CCDW”), and

Possession of Marijuana. On May 31, 2015, Capers pleaded guilty to PFBPP and

CCDW. Sentencing was deferred pending a presentence investigation.

      (2)    At the outset of the guilty plea hearing, the parties addressed an

unresolved issue noted in the guilty plea agreement and Truth-in-Sentencing Guilty
Plea Form concerning the effect, if any, of Capers’ prior New Jersey drug conviction

on the sentence to be imposed for PFBPP under 11 Del. C. § 1448(e)(1).1 Capers had

two prior convictions, both in New Jersey.        The parties agreed that one of the

convictions—aggravated manslaughter—qualified as a “prior violent felony” that

would subject Capers to a five-year minimum-mandatory sentence under §

1448(e)(1)(b).2 What the parties did not know was whether the second New Jersey

conviction—a drug conviction—also qualified as a “prior violent felony.” If it did,

Capers would be subject to a ten-year minimum-mandatory sentence under §

1448(e)(1)(c).3

       (3)    As reflected in the plea agreement and confirmed at the guilty plea

hearing, the parties determined that it would be appropriate to proceed with the plea

colloquy and refer the unresolved sentencing question to the presentence office. After

discussing all of this with counsel at the guilty plea hearing, the Superior Court asked

Capers if he still wanted to enter the guilty plea. Capers indicated that he did.4

       (4)    Capers’ sentencing was scheduled for June 26, 2015. On June 25, the

State submitted a letter indicating its disagreement with the conclusion in the

presentence report that Capers’ New Jersey drug conviction did not qualify as a prior



1
  11 Del. C. § 1448(e)(1) (Supp. 2019).
2
  Id. § 1148(e)(1)(b).
3
  Id. § 1148(e)(1)(c).
4
  Hr’g Tr. at 5 (May 31, 2015).
                                            2
violent felony under 11 Del. C. § 1448(e) because it was not classified as a violent

felony in New Jersey. The State correctly contended that Delaware’s classification of

the crime controlled, not New Jersey’s,5 and that the equivalent drug offense in

Delaware was classified as a violent felony.

         (5)    The Superior Court deferred Capers’ sentencing.            Upon further

consideration of the issue, Capers moved to withdraw the guilty plea, asserting that the

plea should be withdrawn because he had entered into it believing that New Jersey law

would determine whether or not his New Jersey drug conviction was a violent felony.

By order dated November 17, 2015, the Superior Court granted the plea withdrawal

motion, stating that “[t]he benefit of hindsight leads the Court to conclude that it should

not have accepted this guilty plea when there was so much unknown regarding

defendant’s prior conviction(s) in New Jersey.”6

         (6)    When Capers’ case went to trial, the jury convicted him, as charged, of

PFBPP, PABPP, CCDW, and Possession of Marijuana. Capers was sentenced to a

total of twenty-three years of Level V incarceration suspended after ten years for six

months of Level IV supervision followed by Level III probation. This is Capers’ direct

appeal.




5
    Miller v. State, 2008 187957 (Del. Jan. 9, 2008).
6
    2015 WL 7301890, at *2 (Del. Super. Nov. 17, 2015).
                                                 3
       (7)    On appeal, Capers’ trial counsel has filed a no-merit brief and motion to

withdraw under Rule 26(c). Counsel asserts that, based upon a complete and careful

examination of the record, there are no arguably appealable issues. Capers has

supplemented the Rule 26(c) brief with claims that he would like the Court to consider

on appeal. The State has responded to the position taken by Capers’ counsel and the

claims raised by Capers, and has moved to affirm the Superior Court’s judgment.

       (8)    When considering a Rule 26(c) brief and motion to withdraw, our standard

and scope of review is twofold.7 First, we must be satisfied that the appellant’s counsel

made a conscientious examination of the record and the law for claims that could

arguably support the appeal.8     Second, we must conduct our own review of the record

to determine whether the appeal is so totally devoid of at least arguably appealable

issues that it can be decided without an adversary presentation.9

       (9)    Capers does not address his jury trial or sentencing on appeal. Instead, he

claims that the Superior Court erred when it permitted—at his request—the withdrawal

of his guilty plea. According to Capers, the Superior Court should have denied the

motion to withdraw the plea, enforced the plea agreement—which he asserts was

breached by the State— and imposed the five-year minimum-mandatory sentence for



7
  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).
8
  Penson v. Ohio, 488 U.S. at 83.
9
  Id.
                                              4
PFBPP based on one qualifying prior violent felony. Because Capers did not challenge

the withdrawal of his guilty plea in the Superior Court, we review his claims for plain

error. “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.” 10

       (10) A motion to withdraw a guilty plea is addressed to the sound discretion of

the trial court.11 We find no error in the Superior Court’s decision permitting Capers

to withdraw the guilty plea.12 Also, we find no support in the record for Capers’

assertion that the State breached the plea agreement. Contrary to Capers’ claim on

appeal, on the question of which minimum-mandatory sentence would apply, the

parties did not agree that they would be bound by New Jersey law or by the answer in

the presentence report even if it was incorrect under Delaware law.

       (11) Having carefully reviewed the record, we conclude that Capers’ appeal is

wholly without merit and devoid of any arguably appealable issue. We are satisfied

that Capers’ counsel made a conscientious effort to examine the record and the law and

properly determined that Capers could not raise a meritorious claim on appeal.




10
   Wainwright v. State, 504 A.2d 1096, 1100 (Del. 1986).
11
   Blackwell v. State, 736 A.2d 971, 972 (Del. 1999).
12
   Pringle v. State, 2007 WL 4374197, at *2 (Del. Dec. 17, 2007) (finding no plain error in the
Superior Court’s decision to grant the motion to withdraw the guilty plea permitting the defendant to
exercise his constitutional right to a jury trial).
                                                 5
     NOW, THEREFORE, IT IS ORDERED that the motion to affirm is GRANTED.

The judgment of convictions is AFFIRMED. The motion to withdraw is moot.

                             BY THE COURT:

                             /s/ Gary F. Traynor
                             Justice




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