IN THE SUPREME COURT OF THE STATE OF DELAWARE

JEROME D. CLARK, §
§ No. 531, 2014
Defendant Below- §
Appellant, §
§ Court Below—Superior Court
V. § of the State of Delaware,
§ in and for New Castle County
STATE OF DELAWARE, § Cr. ID 13010004000
§
Plaintiff Below— §
Appellee. §

Submitted: April 17, 2015
Decided: June 25, 2015

Before STRINE, Chief Justice; HOLLAND, and VALIHURA, Justices.
O R D E R

This 25th day of June 2015, upon consideration of the parties’ briefs
and the record on appeal, it appears to the Court that:

(1) The appellant, Jerome Clark, ﬁled this appeal from the Superior
Court’s denial of his ﬁrst motion for postconviction relief. After careful
consideration, we afﬁrm the Superior Court’s denial of postconviction relief
but remand the matter for correction of Clark’s sentence.

(2) The record reﬂects that, on May 29, 2013, Clark pled guilty to
one count of Attempted Burglary in the Third Degree and one count of
Criminal Mischief. On August 23, 2013, the Superior Court sentenced Clark

on the burglary charge as a habitual offender under 11 Del. C. § 4214(a) to

two years at Level V incarceration. The sentencing order also stated that,
under 11 Del. C. § 4204(k), Clark’s Level V sentence “shall be served
without beneﬁt of any form of early release.” On the criminal mischief
charge, the Superior Court sentenced Clark to six months at Level V
incarceration, to be suspended entirely for one year at Level III probation.
Clark did not ﬁle a direct appeal.

(3) Instead, on October 1, 2013, Clark ﬁled a motion for
postconviction relief. Clark alleged that: (i) the Superior Court erred in
denying his motion to withdraw his plea; (ii) his trial counsel was ineffective
for failing to advise him that his sentence was subject to the provisions of
Section 4204(k); and (iii) his sentence for criminal mischief was illegal
because he pled guilty to an unclassiﬁed misdemeanor for which the
Superior Court could impose a maximum thirty day sentence. The Superior
Court appointed counsel to represent him.

(4) After considering Clark’s motion, his trial counsel’s afﬁdavit,
and the State’s response, the Superior Court denied Clark’s motion for
postconviction relief. The Superior Court held that Clark’s alleged stress
prior to entering his guilty plea was an insufﬁcient basis to allow withdrawal
of the plea. The Superior Court also concluded that, although Section

4204(k) was not a part of Clark’s guilty plea agreement and was not

E's)

discussed with Clark during his guilty plea colloquy, there was no error

because Clark knew he was being sentenced as a habitual offender under
Section 4214(a) and that he would be required to serve every day of his two

year sentence in jail. Finally, the Superior Court granted Clark’s request to
correct his criminal mischief sentence from six months to thirty days at
Level V. This appeal followed.

(5) Clark raises four discernible issues in his opening brief on
appeal. First, he contends that his trial counsel was ineffective for failing to
file a motion to withdraw his guilty plea. Second, he contends that the
Superior Court erred in denying his pro .98 motion to withdraw his guilty
plea. Third, he contends that his postconviction counsel was ineffective and
did not assist him in ﬁling his postconviction claims. Finally, he contends
that it was error for the Superior Court to sentence him subject to the
provisions of Section 4204(k).

(6) We review the Superior Court’s denial of postconviction relief
for abuse of discretion, although we review questions of law de novo.1
Clark’s ﬁrst issue on appeal, contending that his counsel was ineffective for

failing to move to withdraw his guilty plea, was not raised in the motion he

1 Claudia v. State, 958 A.2d 846, 850 (Del. 2008).

his}

ﬁled in the Superior Court. In the absence of any showing of plain error, we
will not consider his claim for the ﬁrst time on appeal.2

(7) Clark’s second claim is that the Superior Court erred in denying
his pro se motion to withdraw his plea. At his August 2013 sentencing,
Clark asked to withdraw his plea because he was “really, really, really
stressful when [he] took the plea.” The Superior Court considered Clark’s
request. The court noted that Clark had a signiﬁcant criminal history and
was experienced enough to recognize that the State’s plea offer, with a two-
year sentence recommendation, was extremely favorable to him because
Clark was faced with the possibility of a life sentence as a habitual offender
if he were convicted aﬁer a trial. Based on Clark’s demeanor at the guilty
plea hearing and his reSponses to the judge’s inquiries, the Superior Court
found no just reason to grant withdrawal of Clark’s plea.3

(8) Clark did not ﬁle a direct appeal ﬁorn his convictions.
Therefore, his belated challenge to the Superior Court’s denial of his motion

to withdraw his guilty plea is procedurally barred by Superior Court

2 Keyser v. State, 2014 WL 1168835, *2 (Del. Mar. 20, 2014).

3 See Super. Ct. Crim. R. 32 (d) (stating that the Superior Court may permit withdrawal of
a guilty plea upon motion made before sentencing for any “fair and just reason”).

Criminal Rule 61(i)(3) unless Clark can establish cause and prejudice4 or
plead a colorable claim of a miscarriage of justice.5 Clark has satisﬁed
neither standard.

(9) Clark asserts no cause for his failure to raise this claim earlier.
Moreover, the guilty plea transcript in this case reﬂects that Clark
acknowledged that he committed the offenses with which he was charged.
He acknowledged his understanding that the State was recommending that
he be sentenced as a habitual offender to a total period of two years in
prison. He stated that he understood the rights he was giving up, that he was
satisﬁed with his counsel’s representation, and that no one was forcing him
to plead guilty. In short, the record establishes that Clark entered his plea
knowingly, intelligently, and voluntarily. Under the circumstances, Clark
has not overcome the procedural hurdle of Rule 61(i)(3).6

(10) Clark’s next claim is that his appointed postconviction counsel
was ineffective for failing to provide adequate assistance in pursuing his

postconviction claims. We will not consider Clark’s claim of ineffective

4 Del. Super. Ct. Crim. R. 61(i)(3) (stating that any ground for postconviction relief that
was not raised in the proceedings leading to the judgment of conviction is thereafter
barred unless the defendant can show cause and prejudice).

5 Stanley v. State, 2015 WL 3545413, *3 (Del. June 4, 2015).
6 Kalil v. State, 2014 WL 2568029 (Del. June 5, 2014).

assistance of postconviction counsel in this appeal because it was not fairly
raised before the trial court, and he raises no claim of plain error.7

(11) Clark’s ﬁnal claim is that the Superior Court erred in
concluding that there was no error regarding the imposition of his sentence
under 11 Del. C. § 4204(k). In relevant part, Section 4204(k)(l) allows a
sentencing judge to “direct as a condition to a sentence of imprisonment 
that all or a speciﬁed portion of said sentence shall be served without any
form of early release, good time  or any other form of reduction or
diminution of sentence.”8 Section 4204(k)(3) ﬁlrther states that the
provisions of the subsection apply “only to sentences of imprisonment at
Level V for 1 year or less, or to sentences of imprisonment at Level V which
are equal to the statutory maximum Level V sentence available for the crime
or offense.”9

(12) The State concedes that, on its face, Section 4204(k) cannot be
applied to Clark’s sentence, which exceeded one year but was less than the

statutory maximum. Moreover, the State concedes that Clark’s two year

sentence as a habitual offender under Section 4214(a) is subject to the award

7 Guy v. State, 82 A.3d 710, 715 (Del. 2013).
3 11 Del. C. §4204(k)(1).
9 Id. §4204(k)(3).

of good time under Section 4381.10 Accordingly, the State requests that this
case be remanded to the Superior Court for correction of Clark’s sentence to
remove the § 4204(k) restriction. Under the circumstances, we agree that
the matter must be remanded for correction of Clark’s sentence.

NOW, THEREFORE, IT IS ORDERED that the judgment of the
Superior Court denying Clark’s motion for postconviction relief is
AFFIRMED, but the matter is REMANDED to the Superior Court for
correction of Clark’s sentence consistent with this order. Jurisdiction is not

retained.

BY THE COURT:

/s/ Randy .1 Holland

Justice

1" See 11 Del. C. §4214(a).

