             IN THE SUPREME COURT OF THE STATE OF DELAWARE

    PHILLIP L. BREWER,                      §
                                            §
           Defendant Below,                 §   No. 126, 2015
           Appellant,                       §
                                            §   Court Below—Superior Court
           v.                               §   of the State of Delaware,
                                            §   in and for Sussex County
    STATE OF DELAWARE,                      §
                                            §   Cr. ID No. 1009018564
           Plaintiff Below,                 §
           Appellee.                        §

                              Submitted: May 26, 2015
                                Decided: July 30, 2015

Before HOLLAND, VALIHURA, and VAUGHN, Justices.

                                      ORDER

          This 30th day of July 2015, upon consideration of the appellant’s opening

brief, the appellee’s motion to affirm, and the record below, it appears to the Court

that:

          (1)    The appellant, Phillip Brewer, filed this appeal from the Superior

Court’s denial of his second motion for postconviction relief under Superior Court

Criminal Rule 61 (“Rule 61”). The State of Delaware has filed a motion to affirm

the judgment below on the ground that it is manifest on the face of Brewer’s

opening brief that his appeal is without merit.1 We agree and affirm.


1
    Supr. Ct. R. 25(a).
         (2)     On April 27, 2011, Brewer resolved charges in three different cases

by pleading guilty to Possession with Intent to Deliver Cocaine, Maintaining a

Vehicle for Keeping Controlled Substances, Resisting Arrest with Force, and

Tampering with Physical Evidence. Brewer was sentenced to a total of twenty-

seven years of Level V incarceration, to be suspended after serving twenty

mandatory years as a habitual offender for decreasing levels of supervision.

Brewer did not file a direct appeal.

         (3)     On May 2, 2012, Brewer filed his first motion for postconviction

relief under Rule 61. Brewer contended that his counsel was ineffective because

he did not communicate with him during the sentencing proceeding, he did not

convey the sentencing range correctly, he failed to investigate and develop

mitigating evidence for sentencing, and he failed to argue that Brewer was eligible

for good time credit. After receiving a response from Brewer’s former counsel, the

Superior Court denied Brewer’s motion for postconviction relief as untimely under

Rule 61(i)(1) and without merit. On appeal, this Court concluded that Brewer’s

motion for postconviction relief was timely, but affirmed the Superior Court’s

holding that Brewer’s claims were without merit.2

         (4)     On January 21, 2015, Brewer filed his second motion for

postconviction relief.        Brewer argued that: (i) the State’s failure to disclose

2
    Brewer v. State, 2013 WL 166447, at *1-2 (Del. Jan. 15, 2013).

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misconduct at the Office of Chief Medical Examiner (“OCME”) while his case

was pending violated his due process rights; (ii) the State’s failure to disclose

misconduct at the OCME violated his right to cross-examine the witnesses against

him; (iii) the State’s failure to disclose evidence of misconduct at the OCME

misled him regarding the integrity of the chain of custody and the analysis of the

suspected drugs; (iv) the tests and examinations performed by the forensic chemist

failed to satisfy the Daubert/Nelson requirements for admissibility of scientific

evidence; and (v) his former counsel was ineffective for failing to investigate the

State’s evidence and misjudging the reliability and admissibility of the OCME

report. On February 13, 2015, the Superior Court denied the motion, holding that

Brewer’s claims were untimely and repetitive under Rule 61(i) and, alternatively,

without merit based upon Brewer’s admissions during his guilty plea colloquy. On

February 23, 2015, the Superior Court denied Brewer’s motion for reargument.

This appeal followed.

         (5)     We review the Superior Court’s denial of postconviction relief for

abuse of discretion and questions of law de novo.3 The procedural requirements of

Rule 61 must be considered before any substantive issues are addressed.4 In his

opening brief, Brewer argues that the Superior Court erred in denying his motion

3
    Dawson v. State, 673 A.2d 1186, 1190 (Del. 1996).
4
    Younger v. State, 580 A.2d 552, 554 (Del. 1990).

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for postconviction relief because he pled colorable claims of a miscarriage of

justice due to a constitutional violation that undermined the fairness of the

proceedings under Rule 61(i)(5). Brewer specifically argues that impermissible

government conduct (misconduct at the OCME) rendered his guilty plea

involuntary because he would not have pled guilty had the State disclosed the

problems at the OCME. We conclude that the Superior Court did not err in

denying Brewer’s second motion for posconviction relief.

          (6)    First, the Rule 61(i)(5) language that Brewer relies upon did not apply

to the second motion for postconviction relief he filed on January 21, 2015.

Effective June 4, 2014, Rule 61 provided:

          (2) Second or subsequent postconviction motions. A second or
          subsequent motion under this rule shall be summarily dismissed,
          unless the movant was convicted after a trial and the motion either:

          (i) pleads with particularity that new evidence exists that creates a
          strong inference that the movant is actually innocent in fact of the acts
          underlying the charges of which he was convicted; or

          (ii) pleads with particularity a claim that a new rule of constitutional
          law, made retroactive to cases on collateral review by the United
          States Supreme Court or the Delaware Supreme Court, applies to the
          movant's case and renders the conviction or death sentence invalid.5




5
    Super. Ct. R. 61(d)(2) (2014).

                                             4
Under Rule 61(d)(2), summary dismissal of the postconviction motion was

appropriate because it was Brewer’s second motion under Rule 61 and Brewer was

convicted after a guilty plea, not a trial.

          (7)     Second, even assuming that Rule 61(i)(5) applied to Brewer’s second

motion for postconviction relief, Brewer has not pled a colorable claim of a

miscarriage of justice. In Brown v. State,6 this Court rejected the defendant’s

postconviction claim that he was entitled to withdraw his guilty plea based on

newly discovered evidence of a criminal investigation into misconduct at the

OCME.           We held, in the context of that case, that the defendant’s knowing,

intelligent, and voluntary guilty plea waived any right he had to test the strength of

the State’s evidence against him at trial, including the chain of custody of the drug

evidence.7

          (8)     In his guilty plea colloquy, Brewer affirmed that he was “guilty of

possession with intent to deliver cocaine.”8 At no point has Brewer argued that he

was actually innocent. As we emphasized in affirming the denial of Brewer’s first

motion for postconviction relief, Brewer’s guilty plea was knowing and voluntary.9


6
    108 A.3d 1201 (Del. 2015).
7
    Id. at 1205-06.
8
    State’s Motion to Affirm, Ex. C. at 12.
9
    Brewer v. State, 2013 WL 166447, at *2.

                                              5
Brewer is therefore bound by the statements he made to the Superior Court before

his plea was accepted and he is prevented from reopening his case to make claims

that do not address his guilt and involve impeachment evidence that would only be

relevant at a trial.10

           (9)     Brewer’s reliance on decisions based upon language in Brady v.

United States11 does not change this result. In Brady, the United States Supreme

Court held that “a voluntary plea of guilty intelligently made in the light of the then

applicable law does not become vulnerable because later judicial decisions indicate

that the plea rested on a faulty premise.”12 The Court clarified that “[o]f course,

the agents of the State may not produce a plea by actual or threatened physical

harm or by mental coercion overbearing the will of the defendant.”13 As long as

the defendant can “with the help of counsel, rationally weigh the advantages of

going to trial against the advantages of pleading guilty,” the Court determined

there is no constitutional cause for concern.14


10
  Brown v. State, 108 A.3d at 1202. See also Brown v. State, 2015 WL 3372271, at *2 (Del.
May 22, 2015) (holding defendant who entered knowing and voluntary guilty plea did not
overcome Rule 61(i) procedural hurdles with OCME claims).
11
     397 U.S. 742 (1970).
12
     Id.
13
     Id. at 750.
14
     Id.

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      (10) Brewer has failed to allege any improper coercion that undermined his

ability to rationally weigh the advantages or disadvantages of trial. Nothing in

Brewer’s opening brief suggests that he was strong-armed by State agents.

Instead, Brewer claims that the positive OCME drug test results were a significant

factor in his decision to plead guilty and that he would not have pled guilty if he

had known of the misconduct at the OCME. Brewer fails, however, to tie any of

the OCME misconduct to the facts of his case. Brewer has not shown that his

guilty plea was the result of improper coercion and does not claim to be actually

innocent. Under these circumstances, we conclude that the Superior Court did not

err in denying Brewer’s second motion for postconviction relief and motion for

reargument.

      NOW, THEREFORE, IT IS ORDERED that motion to affirm is GRANTED

and the judgment of the Superior Court is AFFIRMED.


                                      BY THE COURT:


                                      /s/Karen L. Valihura
                                            Justice




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