           IN THE SUPREME COURT OF THE STATE OF DELAWARE

MANUEL SALABERRIOS,                       §
                                          §   No. 248, 2016
      Defendant Below,                    §
      Appellant,                          §   Court Below–Superior Court of
                                          §   the State of Delaware
      v.                                  §
                                          §   Cr. ID No. 1405016171
STATE OF DELAWARE,                        §
                                          §
      Plaintiff Below,                    §
      Appellee.                           §

                          Submitted: October 28, 2016
                          Decided:   January 20, 2017

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

                                      ORDER

      This 20th day of January 2017, having considered 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)    In May 2014, the appellant, Manuel Salaberrios, and another man,

Scott Kuntz, were incarcerated at the Central Violation of Probation Center

(CVOP) near Smyrna, Delaware. On May 19, 2014, the two men were in the

CVOP’s housing area during free time when Salaberrios struck Kuntz in the face.

The incident was recorded by a CVOP security camera. Following the incident,

Kuntz was examined by a registered nurse in the CVOP’s medical unit. The nurse
noted a laceration on the inside of Kuntz’ lower lip and some swelling. Kuntz told

the nurse that he was not in pain, and he declined medication for the injury.

       (2)     As a result of the incident, Salaberrios was indicted in June 2014 on

one count of assault in a detention facility for having intentionally caused physical

injury to Kuntz.1        On December 12, 2014, a Superior Court jury convicted

Salaberrios of attempted assault in a detention facility as a lesser-included offense

of assault in a detention facility.2 At sentencing on April 29, 2016, the Superior

Court declared Salaberrios a habitual offender and sentenced him to a mandatory

minimum of eight years at Level V incarceration followed by six months at Level

IV. This is Salaberrios’ direct appeal.

       (3)     On appeal, Salaberrios’ appellate counsel has filed a no-merit brief

and a motion to withdraw under Supreme Court Rule 26(c).3 Appellate counsel

asserts that, based upon a complete and careful examination of the record, there are

no arguably appealable issues in Salaberrios’ case. Appellate counsel has advised

the Court that he provided Salaberrios with a copy of the motion to withdraw, the

no-merit brief and appendix in draft form, and a letter requesting that Salaberrios


1
  See 11 Del. C. § 1254(a) (“Any person who, being confined in a detention facility, intentionally
causes physical injury to . . . any other person confined in a detention facility . . . shall be guilty
of [assault in a detention facility].”)
2
  See 11 Del. C. § 531(2) (“A person is guilty of an attempt to commit a crime if the person . . .
[i]ntentionally does or omits to do anything which, under the circumstances as the person
believes them to be, is a substantial step in a course of conduct planned to culminate in the
commission of the crime by the person.”).
3
  Salaberrios was represented by different counsel at trial.
                                                  2
send him written points for the Court’s consideration. Salaberrios sent written

points to appellate counsel. The points are included in the brief. The State has

responded to the no-merit brief, Salaberrios’ written submission, and has moved to

affirm the Superior Court’s judgment.

      (4)    When reviewing a motion to withdraw and an accompanying brief

under Rule 26(c), this Court must be satisfied that the appellant’s counsel has made

a conscientious examination of the record and the law for arguable claims.4 Also,

the Court must conduct its own review of the record and determine “whether the

appeal is indeed so frivolous that it may be decided without an adversary

presentation.”5   In this case, having conducted “a full examination of all the

proceedings” and found “no nonfrivolous issue for appeal,”6 the Court is satisfied

that Salaberrios’ appellate counsel made a conscientious effort to examine the

record and the law and properly determined that Salaberrios could not raise a

meritorious claim on appeal.

      (5)    The record reflects that, on the first day of trial, the prosecutor asked

the Superior Court to conduct a colloquy with Salaberrios on his decision to reject

the State’s plea offer. The prosecutor also indicated that the State would be



4
  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).
5
  Penson v. Ohio, 488 U.S. at 81.
6
  Id. at 80.
                                            3
requesting a jury instruction on attempted assault in a detention facility as a lesser-

included offense of assault in a detention facility.

         (6)     The State’s plea offer required Salaberrios to plead guilty to assault in

a detention facility, which has a two-year mandatory minimum sentence of

incarceration.7 As part of the offer, the State agreed that it would not seek habitual

offender sentencing and that it would recommend that the court impose no more

than three years of incarceration.

         (7)     The Superior Court conducted a colloquy with Salaberrios about the

plea offer and the potential consequences of accepting and rejecting the plea. At

the conclusion of the colloquy, the court took a recess to give Salaberrios extra

time to consult with his trial counsel and consider the offer. An excerpt from the

trial transcript reflects the following exchange.

         TRIAL JUDGE: All right. And the State’s charged you with assault in a
         detention facility, and apparently thinks that because of your criminal
         history, you’re going to qualify for sentencing as a habitual offender.
         They’ve told you that, I assume; right?

         SALABERRIOS: Yes, Your Honor.

         TRIAL JUDGE: And has [your trial counsel] gone over the fact that if
         you – if this trial doesn’t go the way you’d like it to go and you’re
         convicted, the State is going to play its card that you’re habitual, and
         then they’re going to force me to impose an eight-year jail sentence.
         And what I want to assure you of is if this doesn’t go right today, I
         have no discretion. Assuming you qualify for habitual, that is, you


7
    11 Del. C. § 1254(a).
                                              4
       have three prior felony convictions. . . . I have to impose an eight-
       year sentence. I have no discretion. I have no choice. . . . Okay?

       SALABERRIOS: Okay.

       ***
       TRIAL JUDGE: Now, look, you’re standing here. You’ve got two
       guards behind you and a bailiff here. Do you want a couple of
       minutes to think about this?

       SALABERRIOS: Yes, Your Honor.8

After a short recess, Salaberrios’ trial counsel informed the court that Salaberrios

wanted to proceed to trial.

       (8)     At the start of trial, Salaberrios’ trial counsel moved to dismiss the

indictment, arguing that the State could not proceed without a witness who could

testify “as to whether or not there was actually something going on between

[Salaberrios and Kuntz] or if they were just fooling around or anything like that.”9

The Superior Court denied the motion, ruling that “[t]he State can proceed and try

its case however it can try its case.”10 In its case in chief, the State introduced the

video footage from the CVOP’s security camera, the testimony of a correctional

officer who was working at the CVOP on the date of the incident, and the

testimony of the nurse who examined Kuntz.




8
  Trial Tr. at 8–13 (Dec. 11, 2014).
9
  Id. at 14.
10
   Id.
                                           5
      (9)    Following the jury verdict on December 12, 2014, the Superior Court

ordered a presentence investigation and scheduled sentencing for March 20, 2015.

On January 23, 2015, the State filed a motion to declare Salaberrios a habitual

offender.

      (10)    On December 19 and December 29, 2014, Salaberrios submitted pro

se letters informing the Superior Court that he was hearing voices and having other

symptoms of mental illness for which he needed medical treatment. On March 4,

2015, the Superior Court ordered that Salaberrios receive a mental health

evaluation. A few days later, the court ordered that further proceedings—such as

Salaberrios’ sentencing—should be stayed until the court received the report from

the mental health evaluation.

      (11) The Superior Court record includes the March 13, 2015 mental health

evaluation report submitted by a licensed psychologist affiliated with the

Department of Correction Bureau of Correctional Healthcare. The report states

that the psychologist evaluated Salaberrios on March 12, 2015 “for diagnostic and

treatment planning purposes.”        The report provides a diagnosis based on

Salaberrios’ “current mental status” and makes recommendations for treatment

during Salaberrios’ incarceration.

      (12) In his points on appeal, Salaberrios asks the Court to consider that (1)

the jury should not have been permitted to consider the lesser-included offense of

                                         6
attempted assault in a detention facility; (2) there was insufficient evidence to

support the jury’s verdict; (3) he was not competent to stand trial; (4) he was

denied the right to confront his accuser; (5) the prosecution withheld witnesses

who would have provided testimony favorable to the defense; (6) the jury

instructions contained errors; and (7) his trial counsel was ineffective. For the

following reasons, the Court concludes that Salaberrios’ points are without merit or

are not subject to review on direct appeal.

       (13) Salaberrios contends that the Attorney General’s decision to bring a

criminal prosecution against him was motivated by the personal animus of a

correctional officer. The claim is without merit. A prosecutor has broad discretion

to bring criminal charges “so long as the prosecutor has probable cause to believe

that the accused committed an offense defined by statute.”11                 In this case,

Salaberrios has not substantiated, and the record does not reflect, that the decision

to prosecute him for assault in a detention facility was motivated by the personal

animus of a correctional officer.

       (14) Salaberrios contends that the State’s decision not to call Kuntz to

testify was a violation of his constitutional right to confront his accuser. Also,

Salaberrios contends that the State “withheld information that could help the

[defense]” when the prosecutor did not call two correctional officers to testify,

11
  Albury v. State, 551 A.2d 53, 61 (Del. 1988) (quoting Bordenkircher v. Hayes, 434 U.S. 357,
364 (1978)).
                                             7
even though the officers were included on the State’s witness list. Both claims are

without merit. The Confrontation Clause of the Sixth Amendment guarantees a

defendant the right to cross-examine an adverse witness at trial.12 It does not
                                                                                         13
require the State to call any particular individual to testify as a witness,                  even

when the individual is listed on the State’s list of potential witnesses.14 Salaberrios

has not demonstrated that the State’s decision not to call the two correctional

officers in its case-in-chief constituted a failure to disclose exculpatory or

impeaching information to the defense.15 The State did not suppress the identity of

the two officers.16 Salaberrios knew of the officers before trial and could have

called them to testify for the defense.

       (15) Salaberrios contends that the Superior Court should not have granted

the State’s request to instruct the jury on attempted assault in a detention facility,

and that the jury instructions given by the court contained errors. The claims are

without merit. The Superior Court is required to provide a lesser-included offense

12
   Reed v. State, 1994 WL 100083, at *2 (Del. Mar. 23, 1994) (“The main and essential purpose
of confrontation is to secure for the opponent the opportunity for cross-examination.” (quoting
Davis v. Alaska, 415 U.S. 308, 315-16 (1974))).
13
   Gordon v. State, 1990 WL 168256, at*2 (Del. Sept. 17, 1990) (citing Delaware v. Fensterer,
474 U.S. 15, 22 (1985)).
14
   See e.g., Charbonneau v. State, 904 A.2d 295, 302 (Del. 2006) (providing that the State’s list
of potential witnesses did not obligate the State to call all those listed).
15
   In Brady v. Maryland, the United States Supreme Court held that the State’s failure to disclose
material exculpatory or impeaching evidence to the defense is a violation of the Fourteenth
Amendment. Brady v. Maryland, 373 U.S. 83, 87 (1963).
16
   Id. To constitute a Brady violation, the evidence at issue must have been suppressed by the
State. Robinson v. State, 2016 WL 5957289, at **2 (Del. Oct. 13, 2016) (citing Norman v. State,
968 A.2d 27, 30 (Del. 2009)).
                                                8
instruction upon request by either party if the evidence presented at trial is such

that a jury could rationally find the defendant guilty of the lesser-included offense

and acquit the defendant of the greater offense.17 In this case, the Superior Court

properly granted the State’s request to instruct the jury on attempted assault in a

detention facility as a lesser-included offense. The evidence at trial supported the

instruction. We have reviewed the instructions given by the court and can find no

error. As required, the instructions as a whole provide a correct statement of the

law, are informative, and are not misleading.18

       (16) Salaberrios contends that there was insufficient evidence to convict

him of assault in a detention facility. The claim is without merit. Salaberrios was

not convicted of assault in a detention facility. He was convicted of attempted

assault in a detention facility. When evaluating a sufficiency of the evidence

claim, the Court must ask if, considering the evidence in the light most favorable to

the State, any rational trier of fact could have found the essential elements of the

crime beyond a reasonable doubt.19 In this case, to find Salaberrios guilty of

attempted assault in a detention facility, the jury was required to find, beyond a

reasonable doubt, that Salaberrios took a substantial step to commit assault in a



17
   Brown v. State, 2013 WL 434054, at *3 (Del. Feb. 4, 2013) (citing Wiggins v. State, 902 A.2d
1110, 1113 (Del. 2006)).
18
   Rybicki v. State, 119 A.3d 663, 675 (Del. 2015).
19
   Goode v. State, 136 A.3d 303, 314 (Del. 2016).
                                              9
detention facility, that is, to cause physical injury to Kuntz.20 The evidence in this

case included the video footage from the CVOP security camera showing

Salaberrios striking Kuntz in the face.              The evidence was sufficient to find

Salaberrios guilty beyond a reasonable doubt of attempted assault in a detention

facility.

       (17) Salaberrios contends that he was “not mentally fit” to stand trial. “To

be competent to stand trial, a defendant must have ‘a sufficient present ability to

consult with his lawyer with a reasonable degree of rational understanding’ and

must possess ‘a rational as well as factual understanding of the proceedings against

him.’”21 The Superior Court must inquire into a defendant’s competence when

there is a reason to doubt the defendant’s competence to stand trial.22 In this case,

the trial transcript does not reveal any indication that Salaberrios was unable to

consult with his trial counsel with a reasonable degree of rational understanding or

that he did not have a rational and factual understanding of the proceedings against

him. On direct appeal, in the absence of any indication in the trial transcript that

Salaberrios not competent to stand trial or that the Superior Court had a reason to

doubt his competence, Salaberrios’ claim that he was not competent to stand trial is

without merit.


20
   Supra notes 1, 2.
21
   Kostyshyn v. State, 51 A.3d 416, 420 (Del. 2012) (internal citations omitted).
22
   Id.
                                                10
         (18) Salaberrios contends that his trial counsel “neglected to let the court

know about his mental issues” and that counsel failed to make sure he understood

“what was meant by lesser included.” Salaberrios also contends that his trial

counsel was not prepared to defend against the lesser-included offense of

attempted assault in a detention facility. The Court does not consider claims of

ineffective assistance of counsel on direct appeal.23 Salaberrios may bring those

claims in a motion for postconviction relief filed in the Superior Court.

         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




23
     Desmond v. State, 654 A.2d 821, 829 (Del. 1994).
                                                11
