         IN THE SUPREME COURT OF THE STATE OF DELAWARE

  EVERETT E. SMITH,                       §
                                          §
        Defendant Below-                  §   No. 186, 2017
        Appellant,                        §
                                          §
        v.                                §   Court Below—Superior Court
                                          §   of the State of Delaware
  STATE OF DELAWARE,                      §
                                          §   Cr. ID 1211004907 (N)
        Plaintiff Below-                  §
        Appellee.                         §

                           Submitted: September 1, 2017
                           Decided:   October 23, 2017

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

                                     ORDER

      This 23rd day of October 2017, upon consideration of the appellant’s opening

brief, the State’s motion to affirm, and the record below, it appears to the Court that:

      (1)    The appellant, Everett Smith, filed this appeal from a Superior Court

order dated March 30, 2017, which denied Smith’s “Motion to Restructure.” The

State of Delaware has filed a motion to affirm the judgment below on the ground

that it is manifest on the face of Smith’s opening brief that the appeal is without

merit. We agree and affirm.

      (2)    A Superior Court jury convicted Smith in 2013 of Attempted Robbery

in the Second Degree and Criminal Mischief. The Superior Court sentenced Smith

as a habitual offender to a total period of seven years and thirty days at Level V
incarceration to be suspended after serving seven years in prison for a period

probation. This Court affirmed Smith’s convictions and sentence on direct appeal.1

         (3)     Smith filed a timely first motion for postconviction relief under

Superior Court Criminal Rule 61 in July 2015. Thereafter, he filed a request for

counsel and an amended Rule 61 motion. The Superior Court appointed counsel to

represent Smith. On February 3, 2017, Smith’s appointed counsel filed a motion to

withdraw from further representation under Rule 61(e)(7), finding no ground for

relief that counsel could advocate ethically on Smith’s behalf. On February 13,

2017, Smith filed a response in opposition to appointed counsel’s contention that

Smith’s case presented no grounds for relief.

         (4)     On March 13, 2017, Smith filed a “Motion to Restructure.” In the first

sentence of his motion, Smith stated that wanted to withdraw his Rule 61 motion.

He requested instead that the Superior Court restructure his sentence to release him

from Level V upon completion of his minimum mandatory five-year term and allow

him to receive twenty-two months of mental health treatment either within the prison

or at the Delaware Psychiatric Center (“DPC”).

         (5)     On March 30, 2017, the Superior Court, in a letter order, acknowledged

Smith’s withdrawal of his Rule 61 motion and, thus, granted his appointed counsel’s

motion to withdraw. But, the Superior Court denied Smith’s motion to restructure


1
    Smith v. State, 2015 WL 504817 (Del. Feb. 4, 2015).


                                                2
his sentence because his request to be relocated internally within the Department of

Correction’s facilities was not within the Superior Court’s discretion to order and

because Smith’s alternative request to be transferred to DPC was not supported by

any information from the Department of Health and Social Services as required by

11 Del. C. § 406. This appeal followed.

          (6)    In his opening brief on appeal, Smith’s sole argument is that the

Superior Court erred in denying his motion for postconviction relief because his trial

counsel was ineffective for failing to present mitigating evidence that would have

resulted in a different sentence. But, the Superior Court did not deny Smith’s Rule

61 motion. Smith withdrew it. Thus, the sole issue that Smith raises on appeal was

not fairly presented to the Superior Court in the first instance. In the absence of plain

error, which we do not find, this Court will not consider any issue on appeal that was

not fairly raised and considered by the trial court.2

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

Court is AFFIRMED.

                                                BY THE COURT:
                                                /s/ Leo E. Strine, Jr.
                                                Chief Justice




2
    Russell v. State, 5 A.3d 622, 628 (Del. 2010).


                                                     3
