           IN THE SUPREME COURT OF THE STATE OF DELAWARE

    DONOVAN J. GARVIN,                       §
                                             §
          Defendant Below,                   §   No. 476, 2015
          Appellant,                         §
                                             §   Court Below—Superior Court
          v.                                 §   of the State of Delaware,
                                             §   in and for Kent County
    STATE OF DELAWARE,                       §   Cr. ID No. 1302013656
                                             §
          Plaintiff Below,                   §
          Appellee.                          §

                             Submitted: October 7, 20151
                              Decided: December 7, 2015

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

                                    ORDER

        This 7th day of December 2015, upon consideration of the appellant’s opening

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

that:

        (1)    The appellant, Donovan J. Garvin, filed this appeal from the Superior

Court’s denial of his first motion for postconviction relief. The State of Delaware

has filed a motion to affirm the judgment below on the ground that it is manifest on

the face of Garvin’s opening brief that his appeal is without merit. We agree and

affirm.


1
 The motion to affirm was filed on September 21, 2015, but the record was filed on October 7,
2015.
      (2)    In April 2013, Garvin was charged by indictment with forty-five counts

of Sexual Solicitation of a Child, Possession of Child Pornography, and Sexual

Abuse of a Child by a Person of Trust in the First Degree. The charges arose from

Garvin’s contact with three children—two children under the age of eighteen and

one child under the age of sixteen. On August 28, 2013, Garvin pled guilty to Sexual

Abuse of a Child by a Person of Trust in the First Degree as to the child under sixteen

and the State entered a nolle prosequi on the remaining charges.

      (3)    As part of the plea agreement, the parties agreed to immediate

sentencing and a sentencing recommendation of twenty-five years of Level V

incarceration, suspended after thirteen years (which included the ten year minimum

Level V sentence required by 11 Del. C. 778(6)(b)) for decreasing levels of

supervision. After consideration of aggravating and mitigating factors, the Superior

Court imposed the recommended sentence. Garvin did not file a direct appeal.

      (4)    On November 25, 2013, Garvin filed a motion for postconviction relief

under Superior Court Criminal Rule 61 (“Rule 61”). Counsel (“Postconviction

Counsel”) was appointed to represent Garvin. On March 13, 2015, Postconviction

Counsel filed a motion to withdraw under Rule 61(e).

      (5)    Garvin filed a response to the motion to withdraw, reiterating the claims

in his motion for postconviction relief and asserting additional ineffective assistance

of counsel claims. In an order dated May 14, 2015, the Superior Court granted the



                                          2
motion to withdraw. On August 18, 2015, the Superior Court denied Garvin’s

motion for postconviction relief. This appeal followed.

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

abuse of discretion and questions of law de novo.2 The procedural requirements of

Rule 61 must be considered before any substantive issues are addressed.3 As he did

in the Superior Court, Garvin argues that: (i) his counsel coerced him to plead guilty;

(ii) his counsel did not utilize favorable evidence showing the victim was the

aggressor; (iii) his counsel incorrectly informed him that he was subject to a ten year

minimum sentence and that he could earn good time credit on that sentence; (iv) his

counsel failed to raise various mitigating factors at sentencing; (v) his counsel failed

to research or investigate his case; (vi) his counsel did not communicate sufficiently

with him; and (vii) his guilty plea was not supported by sufficient evidence.

       (7)     To prevail on his ineffective assistance of counsel claims, Garvin must

show that: (i) his counsel’s conduct fell below an objective standard of

reasonableness; and (ii) there is a reasonable probability that but for counsel’s errors,

he would not have pled guilty and would have insisted on proceeding to trial.4 There

is a “strong presumption” that counsel’s representation was professionally




2
  Dawson v. State, 673 A.2d 1186, 1190 (Del.1996).
3
  Younger v. State, 580 A.2d 552, 554 (Del.1990).
4
  Hill v. Lockhart, 474 U.S. 52, 58-59 (1985); Albury v. State, 551 A.2d 53, 59 (1988).


                                                3
reasonable.5 A defendant must set forth and substantiate concrete allegations of

actual prejudice.6

       (8)    The record does not support Garvin’s claim that his counsel coerced

him to plead guilty. During the guilty plea colloquy, Garvin told the Superior Court

that he intentionally engaged in sexual penetration with a victim who had not reached

the age of sixteen while he stood in a position of trust, authority, or supervision over

the victim, he freely and voluntarily pled guilty, and nobody, including his lawyer,

threatened or forced him to plead guilty. Similarly, Garvin indicated in the Truth–

In–Sentencing Guilty Plea form that he had freely and voluntarily decided to plead

guilty and that nobody had threatened or forced him to plead guilty. In the absence

of clear and convincing evidence to the contrary, Garvin is bound by these

representations.7

       (9)    In arguing that his counsel failed to utilize favorable evidence that the

victim was the aggressor, Garvin ignores that a child under sixteen cannot consent

to a sexual act with a person more than four years older than the child.8 Garvin was

in his thirties at the time of the offenses. As to Garvin’s claim that his counsel

incorrectly informed him that he was subject to a ten year minimum Level V




5
  Strickland v. Washington, 466 U.S. 668, 689 (1984).
6
  Younger v. State, 580 A.2d at 554.
7
  Somerville v. State, 703 A.2d 629, 632 (Del. 1997).
8
  11 Del. C. § 761(k).


                                               4
sentence and could earn good time credit on that portion of his sentence, Garvin was

not misinformed. Garvin pled guilty to intentionally engaging in sexual penetration

with a victim who had not reached the age of sixteen while he stood in a position of

trust, authority, or supervision over the victim, 9 which is subject to a minimum

sentence of ten years of Level V incarceration.10 Contrary to Garvin’s belief, digital

penetration falls within the definition of sexual penetration.11 Garvin can also earn

good time on the ten year minimum portion of his sentence.12

       (10) Garvin’s claim that his counsel was ineffective for failing to present

certain mitigating factors at sentencing is also without merit. The record reflects

that the Superior Court imposed the sentence that was negotiated and recommended

by the parties. Contrary to his contention, Garvin’s lack of previous criminal record

was raised at sentencing as a mitigating factor. In claiming that his counsel should

have presented evidence that the victim was the aggressor and that he initially

refrained from sexual contact with the victim due to concern for the victim, Garvin

again disregards that a child under sixteen cannot consent to a sexual act with a

person more than four years older than the child.13 Garvin also fails to recognize



9
  11 Del. C. § 778(2).
10
   11 Del. C. § 778(6)(b).
11
   11 Del. C. § 761(d), (i).
12
   11 Del. C. § 4381(a) (providing that all sentences, other than a life sentence or a sentence
imposed under 11 Del. C. § 4214 or 11 Del. C. § 4204(k), can be reduced by good time). Garvin
was not sentenced under 11 Del. C. § 4214 or 11 Del. C. § 4204(k).
13
   See supra n. 8.


                                              5
that these claims are inconsistent with a mitigating factor that the Court did take into

account in imposing the sentence—Garvin’s acceptance of responsibility for his

actions. To the extent Garvin relies upon newspaper reports of convictions and

sentences imposed in different sexual abuse cases, those cases, which appear to

involve fewer victims, different charges, and different convictions, do not support

his ineffectiveness claims.

          (11) Garvin’s contentions that his counsel failed to investigate his case or

communicate with him sufficiently are not supported by any concrete allegations of

actual prejudice. Given the number of serious charges against him and the many

decades of imprisonment that he faced, Garvin received a clear benefit from his

guilty plea. The Superior Court did not err in finding that Garvin’s ineffective

assistance of counsel claims were without merit.

          (12) The Superior Court also did not err in rejecting Garvin’s sufficiency of

the evidence claim. This claim was barred by Garvin’s knowing and voluntary guilty

plea.14 Having carefully reviewed the record and the parties’ positions on appeal,

we conclude that the Superior Court did not err in denying Donovan’s motion for

postconviction relief under Rule 61.




14
     Panuski v. State, 41 A.3d 416, 420 (Del. 2012).


                                                  6
     NOW, THEREFORE, IT IS ORDERED that the motion to affirm is

GRANTED and the judgment of the Superior Court is AFFIRMED.

                                 BY THE COURT:


                                 /s/ Randy J. Holland
                                 Justice




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