IN THE SUPREME COURT OF THE STATE OF DELAWARE

CURTIS BENN, §
§
Defendant Below- § No. 400, 2014
Appellant, §
' §
V. § Court Below—Superior Court
§ of the State of Delaware,
STATE OF DELAWARE, § in and for New Castle County
§ Cr. ID No. 1207012970
Plaintiff Below- §
Appellee. §

Submitted: December 22, 2014
Decided: January 23, 2015

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

This 23rd day of January 2015, 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 June 14, 2013, the appellant, Curtis Benn, pled guilty to Sex
Offender Unlawful Sexual Conduct with a Child and Failure to Properly Register
as a Sex Offender. On July 26, 2013 Benn filed a pro se motion to withdraw his
guilty plea. On October 4, 2013 and February 7, 2014, the Superior Court ordered
a psychiatric evaluation of Benn to determine his mental competency to enter a

guilty plea. Through new counsel, Benn ﬁled a motion to withdraw his guilty plea

on March 17, 2014.

(2) After a hearing on June 27, 2014, the Superior Court denied Benn’s
motion to withdraw his guilty plea. The Superior Court proceeded to sentence
Benn as follows: (i) for Sex Offender Unlawful Sexual Conduct with a Child,
effective July 15, 2012, one year, eleven months, and eighteen days of Level V
incarceration (time served); and (ii) for Failure to Properly Register as a Sex
Offender, two years of Level V incarceration, suspended for two years of Level IV
probation, suspended after six months for eighteen months of Level III probation.
This is Benn’s direct appeal.

(3) On appeal, Benn’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 Benn of the provisions of Rule
26(c) and provided Benn with a copy of the motion to withdraw and the
accompanying brief. Counsel also informed Benn of his right to identify any
points he wished this Court to consider on appeal. Benn has raised several issues
for this Court’s consideration. The State has responded to the issues raised by
Benn and asked this Court 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: (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

(5) The issues Benn raises on appeal may be summarized as follows: (i)
the Superior Court erred in denying his motion to withdraw his guilty plea because
DNA evidence proved he was innocent, he had a history of mental illness and was
on prescription medication at the time of his guilty plea, a mental competency
evaluation should have been performed before his guilty plea, he wanted to be
home with his sick mother, and his counsel coerced him into accepting the plea;
(ii) there were multiple hearing dates and postponements of his trial dates in
Violation of his due process rights; and (iii) his counsel was ineffective.

(6) We review the denial of a motion to withdraw a guilty plea for abuse
of discretion.2 The defendant bears the burden of showing a fair and just reason to
permit withdrawal of his plea.3 In evaluating whether to grant a motion to
withdraw a guilty plea, the Superior Court must address: (i) whether there was a
procedural defect in taking the plea; (ii) whether the defendant voluntarily entered

the plea; (iii) whether the defendant had a basis to assert legal innocence; (iv)

1 Penson v. Ohio, 488 US. 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).

3 Super. Ct. Crim. R. 32(d).

whether the defendant had adequate legal counsel; and (V) whether granting the
motion would prejudice the State or unduly inconvenience the court.4

(7) The transcript of the hearing on Benn’s motion to withdraw his guilty
plea reﬂects that the Superior Court properly considered all ﬁve factors in denying
the motion. As the Superior Court recognized, Benn’s claims of innocence,
coercion, and dissatisfaction with counsel were contrary to his representations
during the guilty plea colloquy. The transcript of the plea colloquy reﬂects that
Benn told the Superior Court it was his decision to plead guilty to Unlawful Sexual
Conduct with a Child and Failure to Properly Register as a Sex Offender, nobody
was forcing him to plead guilty, he understood that he was waiving trial and
appellate rights, he was guilty of both of the offenses, he and his counsel reviewed
the Truth-In-Sentencing Guilty Plea form line by line, he was satisﬁed with his
counsel, and he had no complaints or problems to raise with the Superior Court.
Benn is bound by his answers during the guilty plea colloquy absent clear and
convincing evidence to the contrary.5 V

(8) Contrary to Benn’s contention, DNA evidence ruling him out as a
contributor to semen found on his stepdaughter’s blanket does not prove he was

innocent of exposing himself to his stepdaughter (the conduct identiﬁed in the re-

4 Scarborough v. State, 938 A.2d 644, 649 (Del. 2007).

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

indictment for the charge of Sex Offender Unlawﬁll Sexual Conduct with a Child)
or Failure to Properly Register as a Sex Offender. As to Benn’s mental health, the
Superior Court noted that although the Delaware Psychiatric Center (“DPC”)
indicated it was difﬁcult to evaluate someone’s past mental competence, the DPC
did not believe Benn’s psychiatric symptoms or cognitive limitations unduly
inﬂuenced his decision to enter a guilty plea. Benn indicated in the Truth-In-
Sentencing Guilty Plea form that he had never been a patient in a mental hospital
and that he was not under the inﬂuence of alcohol or drugs. There is no clear and
convincing evidence that Benn’s mental health or prescription medications made
him incapable of entering a knowing, intelligent, and voluntary guilty plea. We
therefore conclude that the Superior Court did not err in denying Benn’s motion to
withdraw his guilty plea.

(9) Benn next claims that multiple hearing dates and postponements of his
trial dates violated his due process rights. A voluntary guilty plea constitutes a
waiver of any alleged errors or defects occurring before the entry of the plea.6
Because the record reﬂects that Benn’s guilty plea was voluntary, he waived
claims based on errors occurring before the entry of his plea. Finally, Benn claims

his counsel was ineffective. We will not consider ineffective assistance of counsel

6 Downer v. State, 543 A.2d 309, 312-13 (Del. 1988).

claims for the ﬁrst time on direct appeal when those claims have not been decided
on the merits by the Superior Court.7

(10) This Court has reviewed the record carefully and has concluded that
the remainder of Benn’s appeal is wholly Without merit and devoid of any arguably
appealable issue. We also are satisﬁed that Benn’s counsel has made a
conscientious effort to examine the reCord and the law and has properly determined

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

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

Court is AF FIRlVIED. The motion to Withdraw is moot.

BY THE COURT:

JAM

ustice

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

