           IN THE SUPREME COURT OF THE STATE OF DELAWARE

DAMON RUTHERFORD,                       §
                                        §
      Defendant Below,                  §   No. 653, 2015
      Appellant,                        §
                                        §   Court Below—Superior Court
      v.                                §   of the State of Delaware,
                                        §   Cr. ID Nos. 1312008135 and
STATE OF DELAWARE,                      §   1508013143
                                        §
      Plaintiff Below,                  §
      Appellee.                         §

                          Submitted: April 15, 2016
                          Decided:   June 3, 2016

Before HOLLAND, VALIHURA, and VAUGHN, Justices.

                                 ORDER

      This 3rd day of June 2016, upon consideration of the appellant's Supreme

Court Rule 26(c) brief, the State's response, and the record below, it appears to the

Court that:

      (1)     In February 2014, a New Castle County grand jury indicted

Rutherford for Assault in the First Degree, Possession of a Firearm During the

Commission of a Felony (“PFDCF”), Possession of a Firearm by a Person

Prohibited (“PFBPP”), Offensive Touching, Harassment, Assault in the Third

Degree, Terroristic Threatening, and Possession of Marijuana. Most of the charges

arose from Rutherford’s assaults on his ex-girlfriend, which included shooting her

with a BB gun. Rutherford’s bail conditions included no contact with the victim.
In March 2015, a New Castle County grand jury re-indicted Rutherford for Assault

in the First Degree, PFDCF, PFBPP, Possession of a Deadly Weapon During the

Commission of a Felony (“PDWCF”), Possession of a Deadly Weapon by a Person

Prohibited (“PDWBPP”), Offensive Touching, Harassment, Assault in the Third

Degree, Terroristic Threatening, and Possession of Marijuana.

        (2)   On April 21, 2015, Rutherford pled guilty to Assault in the Second

Degree as a lesser included offense of Assault in the First Degree and PDWDCF in

exchange for dismissal of the other claims.          The State agreed to cap its

recommendation for non-suspended Level V time to five years. Sentencing was

scheduled for July 24, 2015.

        (3)   Two weeks before sentencing Rutherford filed pro se motions to

dismiss or replace his counsel and to withdraw his guilty plea. The motions were

referred to Rutherford’s counsel.      At the July 24, 2015 sentencing hearing,

Rutherford stated that he wanted a different attorney and to withdraw his guilty

plea.

        (4)   Rutherford was informed that he could hire his own attorney, but

would not be provided a different attorney at State expense. Sentencing was

rescheduled for September so Rutherford could move to dismiss his counsel and to

withdraw his guilty plea. The State indicated that Rutherford was facing new

charges for contacting the victim in violation of the no-contact provision in his bail



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conditions. Rutherford subsequently filed a motion to withdraw his guilty plea,

which was referred to his counsel, and a motion to dismiss his counsel.

      (5)    On September 4, 2015, sentencing was deferred again until the

Superior Court could conduct a colloquy with Rutherford regarding his waiver of

counsel and then resolve his motion to withdraw his guilty plea. On September 24,

2015, the motion to dismiss counsel was withdrawn. In October 2015, Rutherford

was charged by information with three counts of Breach of Bond Conditions. The

charges arose from Rutherford contacting the victim in violation of the no-contact

provision in his bail conditions.

      (6)    On November 6, 2015, Rutherford pled guilty to three counts of

Breach of Bond Conditions in exchange for the State agreeing not to recommend

any non-suspended Level V time. Rutherford was then sentenced for all of his

crimes as follows: (i) for Assault in the Second Degree, three years of Level V

incarceration with credit for thirteen days previously served, suspended after one

year for decreasing levels of supervision; (ii) for PDWDCF, three years of Level V

incarceration; and (iii) for each count of Breach of Bond Conditions, six months of

Level V incarceration, suspended for six months of Level III probation. This is

Rutherford’s direct appeal.

      (7)    On appeal, Rutherford’s counsel (“Counsel”) filed a brief and a

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



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

no arguably appealable issues. By letter, Counsel informed Rutherford of the

provisions of Rule 26(c) and provided Rutherford with a copy of the motion to

withdraw and the accompanying brief. Counsel also informed Rutherford of his

right to identify any points he wished this Court to consider on appeal. Rutherford

has raised several issues for this Court’s consideration. The State has responded to

the issues raised by Rutherford and asked this Court to affirm the Superior Court's

judgment.

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

under Rule 26(c), this Court must: (i) be satisfied that defense counsel has made a

conscientious examination of the record and the law for arguable claims; and (ii)

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

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

adversary presentation.1

         (9)     Rutherford first argues that his guilty pleas were involuntary because

the Superior Court did not timely address his grievances regarding Counsel and he

only pled guilty because Counsel would not prepare for trial. These claims are

contrary to the record.




1
    Penson v. Ohio, 488 U.S. 75, 83 (1988); Leacock v. State, 690 A.2d 926, 927-28 (Del. 1996).


                                                 4
         (10) There is no indication in the record that Rutherford told the Superior

Court that he was displeased with Counsel before his April 21, 2015 guilty plea. In

the Truth-In-Sentencing Guilty Plea form, Rutherford indicated that he had freely

and voluntarily decided to plead guilty, no one had threatened or forced him to

plead guilty, and he was satisfied with his counsel’s representation. During his

April 21, 2015 guilty plea colloquy with the Superior Court, Rutherford stated that

he understood the plea agreement, he understood he was waiving certain trial

rights, and he was guilty of Assault in the Second Degree and PDWDCF. Absent

clear and convincing evidence to the contrary, which he has not identified,

Rutherford is bound by these representations.2

         (11) Although Rutherford complained about Counsel to the Superior Court

after the April 21, 2015 guilty plea and filed a motion to dismiss counsel, the

motion to dismiss counsel was withdrawn on September 24, 2015. Rutherford

appeared with Counsel at his November 6, 2015 guilty plea and sentencing.

Rutherford again indicated in the Truth-In-Sentencing Guilty Plea form that he had

freely and voluntarily decided to plead guilty, no one had threatened or forced him

to plead guilty, and he was satisfied with his counsel’s representation. Rutherford

also indicated during his guilty plea colloquy that he understood he was waiving

certain trial rights and that he was guilty of Breach of Bond Conditions. Having


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


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carefully reviewed the positions of the parties and the record, we conclude there is

no merit to Rutherford’s claims that his guilty pleas were involuntary.

         (12) Rutherford next contends that Counsel was ineffective. This Court

will not review claims of ineffective assistance of counsel for the first time on

direct appeal.3

         (13) Finally, Rutherford contends that the Superior Court illegally

enhanced his sentence based on its unfounded opinion that the victim lived in fear.

“Appellate review of a sentence is limited to whether the sentence is within the

statutory limits prescribed by the General Assembly and whether it is based on

factual predicates which are false, impermissible, or lack minimal reliability,

judicial vindictiveness or bias, or a closed mind.”4 In this case, Rutherford pled

guilty to five felonies carrying a maximum statutory penalty of forty-eight years of

Level V incarceration. Rutherford was sentenced to a total of seven years and six

months of Level V incarceration, suspended after four years, less than the five

years of non-suspended Level V time requested by the State. This sentence does

not exceed the statutory limits.

         (14) To the extent Rutherford argues that his sentence violates the

guidelines in the Delaware Sentencing Accountability Commission Benchbook

(“SENTAC Guidelines”), “a defendant has no legal or constitutional right to

3
    Somerville v. State, 703 A.2d 629, 632 (Del. 1997).
4
    Weston v. State, 832 A.2d 742, 746 (Del. 2003).


                                                  6
appeal a statutorily authorized sentence simply because it does not conform” to

SENTAC Guidelines.5 In asking for five years of non-suspended Level V time, the

State argued that Rutherford showed no remorse for his actions, engaged in

domestic violence, unduly depreciated his offenses, failed to comply with multiple

court orders, had a prior history of violent criminal conduct, and was not amenable

to supervision in the community. Rutherford acknowledged that he and the victim

had an abusive and toxic relationship. The sentencing order lists vulnerability of

the victim, undue depreciation of the offense, lack of remorse, and need for

correctional treatment as aggravating factors. Nothing in the records suggests that

the Superior Court enhanced Rutherford’s sentence on the basis of false,

impermissible, or unreliable information.

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

the remainder of Rutherford’s appeal is wholly without merit and devoid of any

arguably appealable issue. We also are satisfied that Rutherford’s counsel has

made a conscientious effort to examine the record and the law and has properly

determined that Rutherford could not raise a meritorious claim in this appeal.




5
    Mayes v. State, 604 A.2d 839, 845 (Del. 1992).


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

Court is AFFIRMED. The motion to withdraw is moot.

                                  BY THE COURT:


                                  /s/ Karen L. Valihura
                                         Justice




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