     IN THE SUPREME COURT OF THE STATE OF DELAWARE

ANDRE G. FONVILLE,                      §
                                        §   No. 2, 2015
      Defendant Below-                  §
      Appellant,                        §
                                        §
      v.                                §   Court Below—Superior Court
                                        §   of the State of Delaware,
STATE OF DELAWARE,                      §   in and for Sussex County
                                        §   Cr. ID Nos. 1409005465
      Plaintiff Below-                  §   and 1203007725
      Appellee.                         §

                          Submitted: August 17, 2015
                          Decided:   October 13, 2015

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

                                 ORDER

      This 13th day of October 2015, upon consideration of the appellant’s

brief filed under Supreme Court Rule 26(c), his attorney’s motion to

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

      (1)    In September 2014, the defendant-appellant, Andre Fonville,

was arrested on multiple drug-related charges. As a result of these charges,

Fonville also was charged with violating the terms of his probation in Cr. ID

1203007725. On December 16, 2014, Fonville pled guilty to one count each

of Possession of Heroin in a Tier 5 Quantity and Drug Dealing in a Tier 2

Quantity. He also admitted that he was a habitual offender and that he had

violated his probation. The Superior Court immediately sentenced Fonville
as a habitual offender to a total period, including the VOP, of thirty-two

years and six months at Level V incarceration, with credit for 100 days

previously served, to be suspended after serving five years in prison for one

year at Level IV Crest followed eighteen months at Level III Crest

Aftercare. This is Fonville’s direct appeal.

      (2)      Fonville’s counsel filed a brief and a motion to withdraw under

Supreme Court Rule 26(c). Counsel asserts that, based upon a complete and

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

By letter, counsel informed Fonville of the provisions of Rule 26(c) and

gave him a copy of the motion to withdraw and the accompanying brief and

appendix. Fonville also was informed of his right to supplement counsel’s

presentation. Fonville has raised several issues for inclusion in the Rule

26(c) brief.

      (3)      In response to his counsel’s motion to withdraw, Fonville

enumerates six issues for the Court’s consideration. First, he contends that

the State committed a Brady violation when it failed to provide him with a

copy of the Medical Examiner’s drug testing report. Second, he contends

that the officers exceeded the scope of the search warrant. In a third, related

argument, he asserts that the search warrant was executed at night but was

not a nighttime search warrant. Fourth, Fonville argues that the evidence


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was insufficient to establish the possession charge. Fifth, he contends that

the Superior Court erred in failing to sanction the State for committing a

discovery violation. And, sixth, Fonville contends that his trial counsel was

ineffective.

       (4)     The standard and scope of review applicable to the

consideration of defense           counsel’s     motion to       withdraw and         an

accompanying brief under Rule 26(c) is twofold: a) the Court must be

satisfied that defense counsel has made a conscientious examination of the

record and the law for claims that could arguably support the appeal; and b)

the Court must conduct its own review of the record in order to determine

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

that it can be decided without an adversary presentation. 1

       (5)     With the exception of his ineffective assistance of counsel

claims, which we decline to consider for the first time in this direct appeal,2

the disposition of Fonville’s remaining claims hinges on the Court’s

determination of whether Fonville entered his guilty plea knowingly,

intelligently, and voluntarily. 3       It is well-settled that a knowing and

voluntary guilty plea waives a defendant’s right to challenge any errors
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
  Sahin v. State, 7 A.3d 450, 451 (Del. 2010) (claims of ineffective assistance generally
are not considered for the first time on direct appeal).
3
  Lewis v. State, 2010 WL 2163910, at *1 (Del. May 11, 2010).
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occurring before the entry of the plea, “even those of constitutional

dimensions.” 4

       (6)    In this case, Fonville does not raise any argument challenging

the validity of his plea. Moreover, the record supports the conclusion that

Fonville knowingly, intelligently, and voluntarily pled guilty with a full

understanding of the rights he was waiving.               The judge engaged in a

colloquy with Fonville in open court. Fonville informed the judge that he

understood the charges against him and that he was pleading guilty because

he was, in fact, guilty. Fonville stated that he had reviewed the guilty plea

agreement and that he understood its meaning. Fonville also told the judge

that no one was forcing him to plead guilty and that he was satisfied with his

counsel’s representation. The Superior Court accepted Fonville’s plea and

sentenced him in accordance with his plea agreement.

       (7)    Under the circumstances of this case, we find that Fonville’s

knowing, intelligent, and voluntary guilty plea waived his right to challenge

the search warrant or the search, to challenge any alleged discovery issues or

violations, or to challenge the sufficiency of the State’s evidence. 5 We have

reviewed the record carefully and conclude that Fonville’s appeal is wholly
4
  Wilson v. State, 2010 WL 572114, at *2 (Del. Feb. 18, 2010) (quoting Smith v. State,
2004 WL 120530, at *1 (Del. Jan. 15, 2004)).
5
  Brown v. State, 108 A.3d 1201, 1202 (Del. 2015) (holding that the defendant’s valid
guilty plea waived any right to challenge the strength of the State’s evidence, including
the chain of custody of the drug evidence).
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without merit and devoid of any arguably appealable issue. We also are

satisfied that Fonville’s counsel has made a conscientious effort to examine

the record and has properly determined that Fonville could not raise a

meritorious claim in this 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/ Collins J. Seitz, Jr.
                                            Justice




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