IN THE SUPREME COURT OF THE STATE OF DELAWARE

KEVIN A. EVANS, §
§ No. 70 1 , 201 5
Defendant Below, §
Appellant, § Court Below-Superior Court of
§ the State of Delaware
v. §
§ Cr. ID No. 1306016609
STATE OF DELAWARE, §
§
Plaintiff BeloW, §
Appellee. §

Submitted: July 28, 2016
Decided: October 2l, 2016

Before STRINE, Chief Justice; HOLLAND and VALIHURA, Justices.
0 R D E R

This 21th day of October 2016, upon consideration of the appellant’s opening
brief and supplemental opening brief, the appellee’s motion to affirm as
supplemented, and the Superior Court record, it appears to the Court that:

(l) The appellant, Kevin A. Evans, filed this appeal from the Superior
Court’s denial of his motion for postconviction relief under Superior Court Criminal
Rule 61. The State has moved to affirm the Superior Court’s judgment on the ground
that it is manifest on the face of the opening and supplemental opening briefs that
the appeal is Without merit. We agree and aftirm.

(2) In a thirteen-count indictment filed in June 2013, Evans was charged

with having participated in a December 2011 nighttime home invasion in Newark,

Delaware, during which a senior citizen was seriously physically injured.v With the
assistance of his defense counsel, Evans pled guilty, on December ll, 2013, to four
counts.l In exchange, the State agreed to dismiss the other counts and to recommend
that Evans serve no more than ten years in prison. The parties also agreed to a
presentence investigation

(3) On February 28, 2014, following the submission of the presentence
report, the Superior Court imposed sentence in the home invasion case and in an
earlier~indicted robbery case in which Evans entered a guilty plea on January 8,
2013.2 Evans Was sentenced to twelve years in prison in the horne invasion case and
to seven years in prison in the robbery case.

(4) In his postconviction motion, which was filed on May 8, 2015, Evans
alleged that his defense counsel in the home invasion case Was ineffective because
counsel failed to provide Evans with discovery provided by the State, to discover
weaknesses in the State’s evidence, and to file a motion to suppress. The Superior
Court referred the motion to a Commissioner for a report and recommendation By

report dated July 2, 2015, the Commissioner recommended that the motion should

 

1 Evans pled guilty to two counts of Robbery in the First Degree and one count each of Burglary
in the First Degree and Wearing a Disguise during the Comrnission of a Felony.

2 The Court has taken judicial notice of the Superior Court docket, plea agreement, sentence order,
and plea and sentencing transcript in the earlier-indicted robbery case, State v. Evans, Cr. ID No.
1205025088. The Court notes that, before imposing sentence, the Superior Court allowed Evans
to Withdraw the January 8, 2013 plea in the robbery case and to enter an amended plea.

2

be summarily dismissed because it was untimely filed and because the claims
advanced in the motion were waived by Evans’ guilty plea.

(5) _ In an appeal from the Commissioner’s report and recommendation,
Evans took issue with the Commissioner’s finding that the postconviction motion
was untimely filed. On November 23, 2015 , the Superior Court ruled against Evans
on the timeliness issue, adopted the Commissioner’s report and recommendation,
and denied the postconviction motion. The court’s November 23 letter order
explained the following to Evans:

Regarding the allegation that counsel failed to provide
discovery material to you, it is important to appreciate that
while there is an obligation for counsel to confer With you,
he has no obligation to provide specific discovery material
to you. As such, even if the Court accepts your assertions
as true, they would not rise to the level of an ineffective
assistance claim. Secondly, any issues surrounding the
suppression of evidence for a discrepancy that may have
occurred because of mishandling by the forensic specialist
would have been waived once you entered a plea of guilty.
You could only have preserved those alleged errors if you
had proceeded to trial and been found guilty.

(6) In this appeal from the denial of his postconviction motion, Evans
argues that his guilty plea Was involuntary because of the ineffectiveness of his
defense counsel, Also, Evans complains that a “proper presentence investigation

was not completed” in the robbery case, and he asserts that, had the investigation

been completed, it “could have worked in his favor” at sentencing

(7) Upon review of the parties’ initial submissions on appeal, the Court
discovered that the Commissioner’s report and recommendation was based in part
on audio recordings of the December 13, 2013 plea hearing and the sentencing on
February 28, 2014. Because the audio recordings were not included in the record on
appeal, the Court requested transcripts of the plea hearing and sentencing Once the
transcripts were filed and copies provided to the parties, the Court allowed the parties
to supplement their submissions

(8) We review the denial of postconviction relief for abuse of discretion
and questions of law de novo.3 In this case, we can discern no abuse of discretion or
error of law in the Superior Court’s denial of Evans’ postconviction motion. On
appeal, Evans has not demonstrated, and the record does not reflect, that his defense
counsel was ineffective or that his guilty plea was involuntary. Moreover, the record
does not support Evans’ claim that he was prejudiced at his sentencing

(9) To prevail on a claim of ineffective assistance of counsel in the context
of a guilty plea, a defendant must demonstrate that his counsel’s representation fell
below an objective standard of reasonableness and that there is a reasonable

probability that, but for counsel’s errors, the defendant would not have pled guilty

 

3 Dawson v. Srare, 673 A.zd 1186, 1190 (Del. 1996).
4

but would have insisted on going to trial.4 In this case, Evans cannot establish a
reasonable possibility that, but for his defense counsel’s alleged ineffectiveness, he
would not have pleaded guilty and would have insisted on going to trial. Evans
received a significant benefit from the plea agreement negotiated by his counsel.
Had Evans gone to trial on the thirteen indicted charges in the home invasion case,
the outcome of the case could have been, and likely would have been, far worse for
him. As it stands, Evans is fortunate that the Superior Court imposed only twelve
years of unsuspended Level V imprisonment for the four offenses in the plea
agreement5

(10) Because a valid guilty plea waives any right to test the strength of the
State’s evidence, Evans’ inability to demonstrate an involuntary guilty plea in his
case is key to our decision on his appeal,6 The transcript of the December ll, 2013
plea colloquy reflects that the Superior Court thoroughly questioned Evans and
properly determined that he was entering the plea knowingly and voluntarily. Evans

indicated that he understood that he Was waiving certain trial rights, including the

 

4 Albw»y v. Szare, 551 A.zd 53, 58-60 (Del. 1988) (citing Hill v. Lockharr, 474 U.s. 52, 58-60
(1985)).

5 Under the circumstances in this case as reflected in the record, the Superior Court could have
Sentenced Evans up to twenty-five years in prison for each count of first degree robbery and for
first degree burglary. For wearing a disguise, the court could have imposed a sentence of up to
five years in prison. ll Del. C. §§ 832, 826(a), 1239, 4205(b)(2), (3), (5).

6 Brewer v. State, 2015 WL 4606541, at *2 (citing Brown v. State, 108 A.3d 1201, 1205-06 (Del.
2015)).

right to hear and question witnesses and to present evidence in his own defense.
Also, Evans told the Superior Court that no one had threatened him or offered him
anything in exchange for the plea, and that he was satisfied with his defense
counsel’s representation Furthermore, Evans admitted that he was guilty of the four
offenses in the plea agreement In the absence of clear and convincing evidence to
the contrary, Evans is bound by those representations7

(l l) Finally, under the circumstances as reflected in the record, Evans
cannot complain that he was prejudiced because a “proper presentence investigation
was not completed” in the robbery case. First, the sentencing transcript reflects that
Evans declined the Superior Court’s offer to postpone sentencing so that a
presentence investigation could be conducted in the robbery case. Second, even if
he had not waived a presentence investigation in the robbery case, Evans has not
identified what additional information would have “worked in his favor” in the home
invasion case had there been a presentence investigation in the robbery case.

NOW, THEREFORE, IT IS ORDERED that the State’s motion to affirm is
GRANTED. The judgment of the Superior Court is AFFIRMED.

BY THE COURT:

W\MQ{…

Justice 0

 

7 Somerville v. State, 703 A.2d 629, 632 (Del. 1997).
6

