       IN THE SUPERIOR COURT OF THE STATE OF DELAWARE
                 IN AND FOR NEW CASTLE COUNTY


STATE OF DELAWARE,                        )
                                          )
       v.                                 )              Cr. ID No. 1309006247
                                          )
MARK HUMBERTSON,                          )
           Defendant.                     )

                                  Submitted: July 20, 2015
                                   Decided: July 27, 2015

            ORDER DENYING MARK HUMBERTSON’S MOTION
                  FOR APPOINTMENT OF COUNSEL


       On September 10, 2013, Defendant Mark Humbertson was arrested for

escaping from the custody of the Department of Corrections after having been

convicted by the Superior Court of Kent County and for other criminal conduct.

On October 28, 2013, Defendant was indicted on fifteen (15) charges.

       On April 21, 2014, with the assistance of counsel (“Plea Counsel”),

Defendant pled guilty to six of the fifteen (15) charges, five of which are violent

felonies. 1 The Court ordered a presentence investigation. On July 18, 2014, the

Court sentenced Defendant on the six charges to a total of thirty-seven (37) years

at Level V, suspended after fourteen (14) years.


1
 Defendant pled guilty to one count of Escape After Conviction; two counts of Burglary Second
Degree; one count of Reckless Endangerment in the First Degree; one count of Possession of a
Firearm During the Commission of a Felony; and one count of Possession of a Deadly Weapon
During the Commission of a Felony.
       On May 4, 2015, Defendant filed a Motion for Postconviction Relief (“PCR

Motion”) and an accompanying Motion for Appointment of Counsel (“Motion for

Counsel”). 2    Upon consideration of Defendant’s PCR Motion and Motion for

Counsel; Rule 61 of the Superior Court Rules of Criminal Procedure; statutory and

decisional law; and the entire record in this case, the Court finds as follows:

    1. The recently amended Superior Court Criminal Rule 61 controls

       Defendant’s Motion for Counsel.3 Because this is Defendant’s first motion

       seeking relief from a conviction that is the result of a guilty plea, the Court

       may appoint counsel if, among other things, Defendant’s “motion sets forth

       a substantial claim of ineffective assistance of counsel in relation to the plea

       of guilty . . . and specific exceptional circumstances warrant the appointment

       of counsel.”4

    2. Defendant does not set forth a substantial claim of ineffective assistance of

       counsel in relation to Defendant’s guilty plea. Defendant argues that Plea

       Counsel assumed, without investigation, that Defendant was competent to

       enter the guilty plea despite knowing, and failing to inform the Court, of

       Defendant’s “mental condition.”5 Defendant’s claims are inconsistent with


2
  Defendant filed his Motion for Appointment of Counsel on January 15, 2015. However, the
Court advised that Defendant must first file a motion for postconviction relief before the Court
would consider Defendant’s Motion for Appointment of Counsel. D.I. #17.
3
  Defendant filed the instant motions after the June 4, 2014 amendments took effect.
4
  Super. Ct. Crim. R. 61(e)(2).
5
  Def.’s Mot. 3 (May 4, 2015).
                                               2
         the record. In an affidavit, Plea Counsel states that he and Defendant had

         “numerous discussions about [Defendant’s] mental health history . . . . [And]

         [n]othing during our conversations or [Defendant’s] case history led [Plea

         Counsel] to suspect that [Defendant] was not competent to assist with his

         own defense, stand trial or enter a guilty plea.” 6 Indeed, in December 2013,

         Plea Counsel requested Defendant be evaluated by a psycho-forensic

         evaluator. Defendant was evaluated on February 28, 2014 and Plea Counsel

         shared the evaluation results with State as part of plea discussions. 7

      3. Moreover, Defendant has not presented any exceptional circumstances that

         warrant the appointment of counsel.

         NOW, THEREFORE, on this 27th day of July 2015, Defendant Mark

Humbertson’s Motion for Appointment of Counsel is hereby DENIED.

Postconviction proceedings shall continue in accordance with the briefing

schedule established by the Court’s Order dated May 21, 2015.

         IT IS SO ORDERED.

                                              Andrea L. Rocanelli
                                              ____________________________________
                                              The Honorable Andrea L. Rocanelli




6
    Aff. of Plea Counsel ¶ 1 (July 10, 2015).
7
    Aff. of Chief Deputy of Public Defender’s Office ¶¶ 3–6 (June 17, 2015).
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