      IN THE SUPREME COURT OF THE STATE OF DELAWARE

BRANDON HARRIS,                          §
                                         §   No. 691, 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 1206004370
                                         §
      Plaintiff Below-                   §
      Appellee.                          §

                           Submitted: March 24, 2015
                            Decided: June 4, 2015

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

                                  ORDER

      This 4th day of June 2015, upon consideration of the appellant’s

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

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

      (1)    The defendant-appellant, Brandon Harris, filed this appeal from

the Superior Court’s denial of his first motion for postconviction relief.

Harris’ appointed postconviction counsel has filed a no-merit brief and a

motion to withdraw under Rule 26(c). Counsel asserts that, based upon a

complete and careful examination of the record, there are no arguably

appealable issues. Harris filed a response to his attorney’s presentation,

arguing that his first trial attorney was ineffective and that he was coerced
into pleading guilty because his substitute counsel was not prepared to go to

trial. The State has responded to Harris’ points, as well as to the position

taken by Harris’ counsel, and has moved to affirm the Superior Court’s

judgment. We find no merit to Harris’ appeal. Accordingly, we affirm.

      (2)   The record reflects that Harris was arrested for shooting Taryn

Ross in the abdomen on June 3, 2012. Harris made a statement to the police

admitting his involvement.       He was indicted on five criminal charges:

Assault in the First Degree, two counts of Possession of a Firearm during the

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

Prohibited, and Aggravated Menacing. In October 2012, he filed a motion

to suppress his statements to the police. After a hearing, the Superior Court

denied the motion to suppress.

      (3)   On February 19, 2013, Harris’ then-attorney filed a document

entitled “Motion to Allow Acceptance of Plea and to Withdraw as Counsel.”

In the motion, defense counsel averred that the State previously had made a

plea offer to Harris, which would have allowed Harris to plead guilty to one

count each of Assault in the Second Degree and PFDCF in exchange for the

State’s dismissal of the remaining charges and a recommendation of a four-

year sentence (with a provision that defense counsel could argue for

imposition of the lesser three-year minimum mandatory sentence). Defense


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counsel stated that he had failed to inform Harris that the State had set a

deadline for acceptance of the plea offer. By the time defense counsel

realized his error, the deadline had passed.     The State refused defense

counsel’s request to extend the deadline. Defense counsel asserted in his

motion that, but for counsel’s own ineffectiveness, Harris would have

accepted the plea offer. Counsel, therefore, requested the Superior Court to

allow Harris to accept the plea offer, nunc pro tunc, and to allow counsel to

withdraw.

      (4)   The Superior Court granted counsel’s motion to withdraw but

did not take any action on the motion to allow Harris to accept the State’s

withdrawn plea offer. After substitute defense counsel was appointed, the

State made a revised plea offer to Harris that would allow him to plead

guilty to Assault in the First Degree and PFDCF in exchange for dismissal

of the balance of the indictment. The minimum mandatory sentence for the

two charges was five years.

      (5)   At a hearing held on April 29, 2013, Harris acknowledged his

understanding that, by accepting the State’s revised plea offer, he was

waiving his right to have the Superior Court decide the pending motion to




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allow him to accept the State’s initial plea offer.1 After a careful colloquy,

the Superior Court accepted Harris’ guilty plea. On May 31, 2013, the

Superior Court sentenced Harris to a total period of twenty years at Level V

incarceration, to be suspended after serving ten years in prison for

decreasing levels of supervision. Harris did not file a direct appeal. In

August 2013, Harris filed a motion for reduction of sentence, which the

Superior Court denied. Harris did not appeal that ruling.

         (6)     In September 2013, Harris filed a motion for postconviction

relief. The Superior Court appointed counsel to represent him. Harris’ sole

claim was that his initial trial counsel was ineffective for failing to

communicate the deadline set by the State on the original plea offer. After

obtaining responses from Harris’ initial trial counsel and the State, the

Superior Court denied Harris’ motion for postconviction relief.              The

Superior Court noted that Harris’ ineffective assistance of counsel claim had

been raised in the “Motion to Allow Acceptance of Plea.” Rather than

pursue the claim, Harris (with the assistance of substitute counsel) decided

to accept the State’s modified plea offer. In doing so, the Superior Court


1
    See Hearing Tr. at 18 (Apr. 29, 2013), which reflects the following:
THE COURT: [Y]ou also understand…that your presently pending motion about [sic] to
force the State to take the plea is not going to be heard by the Court?
THE DEFENDANT: Yes.

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held that Harris knowingly, intelligently, and voluntarily pled guilty and

specifically waived his right to have the Superior Court rule on his

ineffectiveness claim and pursue the relief sought in the “Motion to Allow

Acceptance of Plea.” Harris appeals that ruling.

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

consideration of a motion to withdraw and an accompanying brief under

Rule 26(c) is twofold: (a) this Court must be satisfied that defense counsel

has made a conscientious examination of the record and the law for arguable

claims; and (b) this Court must 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.2

         (8)    In considering Harris’ claims of error, this Court reviews the

Superior Court’s denial of postconviction relief for abuse of discretion.3

After careful consideration, we conclude that the judgment denying Harris’

motion for postconviction relief should be affirmed on the basis of, and for

the reasons set forth in, the Superior Court’s well-reasoned decision dated

November 25, 2014. The record in this case supports the Superior Court’s

conclusion that Harris entered his guilty plea knowingly, intelligently, and

2
 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).
3
    Dawson v. State, 673 A.2d 1186, 1190 (Del. 1996).

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voluntarily. Indeed, Harris does not even argue in this appeal that his guilty

plea was defective in any way. The guilty plea transcript also reflects that

Harris, by accepting the State’s modified plea offer, knowingly, intelligently,

and voluntarily waived his right to pursue the ineffective assistance of

counsel claim that had been raised in his “Motion to Allow Acceptance of

Plea.” Under the circumstances, we find no abuse of the Superior Court’s

discretion in denying Harris’ motion for postconviction relief.

      (9)    The Court has reviewed the record carefully and has concluded

that Harris’ appeal is wholly without merit and devoid of any arguably

appealable issue. We also are satisfied that Harris’ counsel has made a

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

determined that Harris 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/ Leo E. Strine, Jr.
                                              Chief Justice




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