           IN THE SUPREME COURT OF THE STATE OF DELAWARE

MICHAEL SELBY,                           §
                                         §
      Defendant Below-                   §   No. 114, 2014
      Appellant,                         §
                                         §
      v.                                 §   Court Below—Superior Court
                                         §   of the State of Delaware,
STATE OF DELAWARE,                       §   in and for New Castle County
                                         §   Cr. ID No. 1202018860
      Plaintiff Below-                   §
      Appellee.                          §

                             Submitted: July 30, 2014
                             Decided:   September 9, 2014

Before HOLLAND, RIDGELY, and VALIHURA, Justices.

                                   ORDER

      This 9th day of September 2014, upon consideration of the appellant's

Supreme Court Rule 26(c) brief, the State's response, and the record below, it

appears to the Court that:

      (1)    On December 11, 2012, the appellant, Michael Selby, pled guilty to

Assault in the First Degree and Possession of a Firearm During the Commission of

a Felony. Although not reflected on the docket, Selby appears to have submitted a

pro se motion to withdraw his guilty plea in January 2013. On March 7, 2013,

Selby’s counsel filed a motion to withdraw the guilty plea and to withdraw as

counsel. The Superior Court denied the motion on April 25, 2013. New counsel

was assigned to represent Selby and filed a motion to withdraw the guilty plea on
July 19, 2013.    The Superior Court denied the second motion to withdraw the

guilty plea on October 15, 2013, finding there was no procedural default in the plea

proceedings, Selby knowingly and voluntarily entered the plea, his assertion of

innocence was contrary to his statements at the plea colloquy and the evidence, his

counsel advocated for him, and allowing withdrawal of the plea would result in a

trial years after the shooting that led to the charges and prejudice the State. On

January 31, 2014 Selby was sentenced as follows: (i) for Assault in the First

Degree, fifteen years of Level V incarceration, suspended after seven years for

decreasing levels of supervision; and (ii) for Possession of a Firearm During the

Commission of a Felony, three years of Level V incarceration. This is Selby’s

direct appeal.

      (2)    On appeal, Selby’s counsel (“Counsel”) filed a brief and a motion to

withdraw under Supreme Court Rule 26(c) (“Rule 26(c)”). Counsel asserts that,

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

appealable issues. By letter, Counsel informed Selby of the provisions of Rule

26(c) and provided Selby with a copy of the motion to withdraw and the

accompanying brief. Counsel also informed Selby of his right to identify any

points he wished this Court to consider on appeal. Selby has raised several issues

for this Court’s consideration. The State has responded to the issues raised by

Selby and asked this Court to affirm the Superior Court's judgment.



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

under Rule 26(c), this Court must: (i) be satisfied that defense counsel has made a

conscientious examination of the record and the law for arguable claims; and (ii)

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.1

         (4)     On appeal, Selby argues that the Superior Court erred in denying his

motions to withdraw his guilty plea because his guilty plea was coerced and

involuntary. In support of this argument, Selby claims that: (i) the transcript of the

plea hearing reflects a pause during which he told his counsel that he did not want

to accept the plea and his counsel told him not to say anything; (ii) the Superior

Court judge who accepted his guilty plea prefers pleas to trials; and (iii) the yes

and no boxes on the Truth-In-Sentencing Guilty Plea form asking if anyone had

threatened or forced him to enter the plea were not marked. Selby also claims that

his plea agreement was not fulfilled.

         (5)     We review the Superior Court’s denial of Selby’s motion to withdraw

his guilty plea for abuse of discretion.2 Upon moving to withdraw his guilty plea,

Selby had the burden of establishing a fair and just reason to permit withdrawal of

1
    Penson v. Ohio, 488 U.S. 75, 83 (1988); Leacock v. State, 690 A.2d 926, 927-28 (Del. 1996).
2
    Chavous v. State, 953 A.2d 282, 285 (Del. 2008).



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the plea.3 Withdrawal of the plea should only be permitted “where the judge

determines ‘the plea was not voluntarily entered or was entered because of

misapprehension or mistake of defendant as to his legal rights.’”4

         (6)     The transcript of the plea colloquy reflects that Selby told the Superior

Court he freely and voluntarily pled guilty to the charges listed in the plea

agreement, he was pleading guilty because he was guilty, nobody threatened or

forced him to accept the guilty plea, he understood the consequences of pleading

guilty, he had sufficient time to discuss the case, possible defenses, and the plea

agreement with his counsel, and he was satisfied with his counsel’s representation.

Similarly, Selby indicated in the Truth-In-Sentencing Guilty Plea form that he had

freely and voluntarily decided to plead guilty and that he understood he was

waiving certain rights as a result of pleading guilty. Absent clear and convincing

evidence to the contrary, Selby is bound by these representations.5

         (7)     Selby’s claims of coercion are without merit.         First, there is no

indication in the plea colloquy transcript that Selby told his counsel that he did not

wish to accept the guilty plea during the plea colloquy. Selby’s responses to the

Superior Court’s questions during the plea colloquy are contrary to such a claim.

3
    Super. Ct. Crim. R. 32(d).
4
 Scarborough v. State, 938 A.2d 644, 650 (Del. 2007) (quoting State v. Insley, 141 A.2d 619,
622 (Del. 1958)).
5
    Somerville v. State, 703 A.2d 629, 632 (Del. 1997).


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This claim is also contrary to Selby’s contention in his July 17, 2013 motion to

withdraw that he chose to plead guilty because he did not believe his counsel was

prepared for trial and he intended to withdraw his guilty plea later. Second, Selby

claims that the Superior Court judge who accepted his guilty plea prefers guilty

pleas to trials, but cites nothing in the record to suggest that the judge pressured

him to plead guilty rather than proceed to trial. Third, while the yes and no boxes

on the Truth-In-Sentencing Guilty Plea form asking if anyone had threatened or

forced Selby to enter the plea were not marked, the Superior Court asked Selby

during the plea colloquy if anyone threatened or forced him to accept the plea and

he stated no.     The record establishes that Selby entered his guilty plea voluntarily

and was not operating under any misapprehension or mistake regarding his legal

rights. Under the circumstances, the Superior Court did not err in denying Selby’s

motions to withdraw his guilty plea.

      (8)       Finally, Selby contends that his plea agreement has not been fulfilled.

Selby was originally charged with Attempted Murder in the First Degree, Robbery

in the First Degree, Conspiracy in the Second Degree, Possession of a Deadly

Weapon by a Person Prohibited and two counts of Possession of a Firearm During

the Commission of a Felony. Pursuant to the plea agreement, Selby pled guilty to

Assault in the First Degree as a lesser included offense of Attempted Murder in the

First Degree and Possession of a Firearm During the Commission of a Felony and



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the State entered a nolle prosequi on the remaining charges. The parties requested

a pre-sentence investigation which was available to the Superior Court before

sentencing. Selby provides no details or explanation concerning how his plea

agreement has allegedly been unfulfilled. Accordingly, this claim is without merit.

      (9)    This Court has reviewed the record carefully and has concluded that

the remainder of Selby’s appeal is wholly without merit and devoid of any

arguably appealable issue. We also are satisfied that Selby’s counsel has made a

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

that Selby could not raise a meritorious claim in this appeal.

      NOW, THEREFORE, IT IS ORDERED that the judgment of the Superior

Court is AFFIRMED. The motion to withdraw is moot.

                                       BY THE COURT:


                                       /s/ Randy J. Holland
                                              Justice




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