               IN THE SUPREME COURT OF THE STATE OF DELAWARE

CHARLES L. SCOTT,                              §
                                               §       No. 66, 2018
          Defendant Below,                     §
          Appellant,                           §       Court Below: Superior Court
                                               §       of the State of Delaware
          v.                                   §
                                               §       Cr. ID No. 92K01112DI
STATE OF DELAWARE,                             §
                                               §
          Plaintiff Below,                     §
          Appellee.                            §

                                Submitted: May 25, 2018
                                Decided:   July 19, 2018

Before VAUGHN, SEITZ, and TRAYNOR, Justices.

                                             ORDER

          This 19th day of July 2018, upon consideration of the appellant’s brief under

Supreme Court Rule 26(c), his attorney’s motion to withdraw, and the State’s

response, it appears to the Court that:

          (1)    Charles L. Scott was convicted in 1992 of first-degree murder and was

sentenced to life in prison without parole.1 Scott was eighteen years old when he

committed the offense.

          (2)    On March 22, 2013, Scott filed a pro se motion for postconviction relief

under Superior Court Criminal Rule 61 (hereinafter “pro se motion”). Scott alleged



1
    Scott also was convicted of, and sentenced for, a related weapon offense.
that his lawyers were ineffective at trial and on direct appeal and that he was denied

a fair trial.

       (3)      The Superior Court appointed counsel to assist Scott in the

postconviction proceeding. Scott’s postconviction counsel filed an amended motion

for postconviction relief (hereinafter “Amended Motion”) arguing that Scott’s age

should have been part of his defense at trial and taken into account when he was

convicted of first-degree murder and sentenced to life in prison.

       (4)      At the direction of the Superior Court, Scott’s former trial counsel filed

affidavits responding to the Amended Motion, and the State filed a response to both

the Amended Motion and the pro se motion. After that, the case was referred to a

Superior Court Commissioner for proposed findings and recommendations.

       (5)      On October 30, 2017, the Commissioner issued a report recommending

that the Amended Motion and the pro se motion should be denied.2 Applying the

version of Rule 61 in effect in 2013 when the pro se motion was filed, the

Commissioner concluded that the motions were procedurally barred under Rule 61(i)

and that neither motion advanced a claim warranting review under the exceptions to

the procedural bar. Also, the Commissioner found that the claims of ineffective

counsel were without merit.3


2
   State v. Scott, 2017 WL 5075412 (Del. Super. Ct. Comm’r Oct. 30, 2017) (Report and
Recommendation).
3
  Id. at *4.
                                             2
       (6)     By order dated January 30, 2018, the Superior Court adopted the

Commissioner’s Report and Recommendation and denied the motions for

postconviction relief. This appeal followed. On appeal, we review the Superior

Court’s denial of postconviction relief for abuse of discretion and questions of law

de novo.4

       (7)     Scott’s postconviction counsel has filed a no-merit brief and a motion

to withdraw under Rule 26(c). Postconviction counsel acknowledges the futility of

continuing to press Scott’s age-based claim on appeal in view of the Court’s recent

decisions in cases such as Flonnory v. State.5 Scott, however, has a different view

and has submitted written points for the Court’s consideration. Scott’s points

reiterate all of the claims raised in the pro se motion, plus a new claim, i.e., that

postconviction counsel was ineffective. The State has filed a response to the pro se

motion’s claims.

       (8)     Generally, this Court will not consider a claim for postconviction relief

that was not considered by the Superior Court in the first instance.6 In this case,

because the Superior Court did not consider Scott’s ineffective assistance of


4
  Dawson v. State, 673 A.2d 1186, 1190 (Del. 1996).
5
  2017 WL 3634216 (Del. Aug. 23, 2017) (holding that defendant could not establish that he was
entitled to the application of juvenile sentencing standards and relief from the mandatory non-
parolable life sentences that were imposed for the homicides he committed as an eighteen-year-
old young adult). See Zebroski v. State, 179 A.3d 855 (Del. 2018) (holding that prohibition of
mandatory life sentences without parole for juveniles does not apply with equal force to defendants
who were eighteen years old at the time of the offense).
6
  Jones v. State, 2015 WL 6164086 (Del. Oct. 20, 2015) (citing Sup. Ct. R. 8)).
                                                3
postconviction counsel claim in the first instance, we have not considered the claim

on appeal.

       (9)    When considering a brief and a motion to withdraw under Rule 26(c),

we must be satisfied that the appellant’s counsel made a conscientious examination

of the record and the law for arguable claims and also conduct our own review of

the record to determine whether the appeal is so devoid of appealable issues that it

can be decided without an adversary presentation.7 In this case, having carefully

considered the parties’ submissions on appeal and reviewed the record, we conclude

that the Superior Court’s order denying Scott’s motions for postconviction relief

should be affirmed on the basis of, and for the reasons provided in, the

Commissioner’s well-reasoned Report and Recommendation.8 We are satisfied that

postconviction counsel made a conscientious effort to examine the record and the

law and properly determined that Scott could not raise a meritorious claim on appeal.

       NOW, THEREFORE, IT IS ORDERED that the 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

7
  Penson v. Ohio, 488 U.S. 75, 82–83 (1988); McCoy v. Court of Appeals of Wisconsin, 486 U.S.
429, 442 (1988); Anders v. California, 386 U.S. 738, 744 (1967).
8
  Supra note 2.
                                             4
