      IN THE SUPREME COURT OF THE STATE OF DELAWARE

 RICHARD WHITE,                          §
                                         §   No. 300, 2018
       Defendant Below-                  §
       Appellant,                        §
                                         §
       v.                                §   Court Below—Superior Court
                                         §   of the State of Delaware
 STATE OF DELAWARE,                      §
                                         §   ID. No. N1703022008
       Plaintiff Below-                  §
       Appellee.                         §

                          Submitted: October 9, 2018
                          Decided: November 21, 2018

Before VALIHURA, VAUGHN, and SEITZ, Justices.

                                   ORDER

      Upon consideration of the appellant’s brief filed under Supreme Court

Rule 26(c), his attorney’s motion to withdraw, and the State’s response

thereto, it appears to the Court that:

      (1)    On September 5, 2017, a New Castle County grand jury indicted

the appellant, Richard White, on eleven counts of Rape in the Second Degree,

six counts of Possession of Child Pornography, four counts of Sexual

Exploitation of a Child, one count of Continuous Sexual Abuse of a Child,

one count of Committing a Dangerous Crime Against a Child, one count of

Sexual Solicitation of a Child, and one count of Dealing in Child Pornography.

The charges arose after the victim reported to a coach that she had been in a
five-year sexual relationship with White that started when she was only

twelve-years-old. On January 16, 2018, White pled guilty to one count of

Rape in the Second Degree. In exchange for his plea, the State dismissed the

other charges. After a presentence investigation, the Superior Court sentenced

White on May 18, 2018 to life imprisonment. This is White’s direct appeal.

      (2) White’s counsel filed a brief and a motion to withdraw under

Supreme Court 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 White of the provisions of Rule 26(c) and gave him

a copy of the motion to withdraw and the accompanying brief and appendix.

White also was informed of his right to supplement counsel’s presentation.

      (3)    In response to his counsel’s motion to withdraw, White raises

eight issues for the Court’s consideration.       First, he contends that the

indictment was defective. Second, he contends that his written plea agreement

was defective for failing to specify the statutory subsection to which he was

pleading guilty. Third, he contends that the child pornography charges in the

indictment were not supported by the evidence. Fourth, he contends that he

was never provided with a copy of the victim’s statement to police. Fifth, he

asserts that the presentence investigation report was the result of bias. Sixth,

he contends that his counsel was ineffective for failing to have him undergo a


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psycho-forensic evaluation. Seventh, he contends that trial counsel was

ineffective for failing to inform him that a life sentence was really possible,

for not filing a motion to withdraw his guilty plea, and for failing to advocate

for him at sentencing.             Finally, he contends that his sentence is

disproportionate compared to other second degree rape cases.

       (4)     The standard and scope of review applicable to the consideration

of defense counsel’s motion to withdraw and an accompanying brief under

Rule 26(c) is twofold: a) the Court must be satisfied that defense counsel has

made a conscientious examination of the record and the law for claims that

could arguably support the appeal; and b) the Court must conduct its own

review of the record in order to 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)     With the exception of his sentencing-related claims and his

ineffective assistance of counsel claims, which we decline to consider for the

first time in this direct appeal,2 the disposition of White’s remaining claims

hinges on the Court’s determination of whether White entered his guilty plea




1
  Penson v Ohio, 488 U.S. 75, 83 (1988); McCoy v. Court of Appeals of Wisconsin, 486
U.S. 429, 442 (1988); Anders v. California, 386 U.S. 738, 744 (1967).
2
  Sahin v. State, 7 A.3d 450, 451 (Del. 2010) (claims of ineffective assistance generally are
not considered for the first time on direct appeal).
                                             3
knowingly, intelligently, and voluntarily.3 It is well-settled that a knowing

and voluntary guilty plea waives a defendant’s right to challenge any errors

occurring before the entry of the plea, “even those of constitutional

dimensions.”4

       (6)    In this case, the record supports the conclusion that White

knowingly, intelligently, and voluntarily pled guilty with a full understanding

of the rights he was waiving. The judge engaged in a colloquy with White in

open court. Under oath, White informed the judge that he understood the

charge against him and that he was pleading guilty because he was, in fact,

guilty. He told the judge that he had not taken any medication or drugs in the

preceding 24 hours that would prevent his understanding of the plea

proceeding. He indicated that he had reviewed the guilty plea agreement and

that he understood its meaning and all of the rights that he was waiving by

entering a guilty plea. White also told the judge that no one was forcing him

to plead guilty and that he was satisfied with his counsel’s representation.

White stated under oath that he understood that, because the victim was a child

under the age of 14, he was facing a minimum sentence of 25 years and a

maximum sentence of life in prison. His signature on the guilty plea form


3
 Lewis v. State, 2010 WL 2163910, at *1 (Del. May 11, 2010).
4
 Wilson v. State, 2010 WL 572114, at *2 (Del. Feb. 18, 2010) (quoting Smith v. State,
2004 WL 120530, at *1 (Del. Jan. 15, 2004)).
                                         4
acknowledged that, despite the State’s recommendation of a 25-year sentence,

no one had promised him what his sentence would be. The judge accepted

White’s plea and, at the parties’ request, ordered a presentence investigation.

       (7)     Under the circumstances of this case, we conclude that White’s

knowing, intelligent, and voluntary guilty plea waived his right to challenge

the indictment, to challenge the sufficiency of the statutory citation in his

written plea agreement, to challenge any alleged discovery issues, or to

challenge the sufficiency of the State’s evidence.5 Moreover, White raised no

objection about the presentence report to the Superior Court in the first

instance, nor did he request a continuance or opportunity to rebut the report.6

In the absence of plain error, which we do not find, White has waived this

claim on appeal.7

       (8)     Finally, with respect to his claim that his life sentence is

disproportionate to other second degree rape cases, our review of his sentence

is limited to determining whether the sentence is within the statutory limits

defined by the General Assembly.8 If the sentence falls within the statutory


5
  Brown v. State, 108 A.3d 1201, 1202 (Del. 2015) (holding that the defendant’s valid guilty
plea waived any right to challenge the strength of the State’s evidence, including the chain
of custody of the drug evidence).
6
  Del. Supr. Ct. R. 8.
7
   Mayes v. State, 604 A.2d 839, 845 (Del. 1992) (defendant’s failure to request a
continuance or opportunity to present rebuttal evidence to presentence investigation report
waived any right to object to the report on appeal).
8
  Kurzmann v. State, 903 A.2d 702, 714 (Del. 2006).
                                             5
limits, we consider only whether it is based on factual predicates which are

false, impermissible, or lack a minimal indicia of reliability, judicial

vindictiveness or bias, or a closed mind.9 “A judge sentences with a closed

mind when the sentence is based on a preconceived bias without consideration

of the nature of the offense or the character of the defendant.”10

          (9)    In sentencing White above the State’s recommended 25-year

sentence, the Superior Court stated that it did not lightly set aside the

sentencing recommendation that had resulted from the parties’ plea

negotiations. Nonetheless, after reviewing all of the information submitted

relevant to sentencing, including the presentence investigation report, the

letters written on White’s behalf, and the nature of the offense, the Superior

Court had to exercise its independent sentencing judgment. The Superior

Court found multiple aggravating factors, including the vulnerability of the

victim and the duration of White’s sexual abuse, and concluded that any

sentence less than life imprisonment would unduly depreciate the nature and

circumstances and damage caused by White’s long-term abuse. Under these

circumstances, we conclude there was no abuse of the Superior Court’s

discretion in sentencing White to life imprisonment.



9
    Id.
10
     Id. (quoting Weston v. State, 832 A.2d 742, 746 (Del. 2003)).
                                              6
      (10) We have reviewed the record carefully and conclude that White’s

appeal is wholly without merit and devoid of any arguably appealable issue.

We also are satisfied that White’s counsel has made a conscientious effort to

examine the record and has properly determined that White could not raise a

meritorious claim in this appeal.

      NOW, THEREFORE, IT IS ORDERED that the State’s motion to

affirm is GRANTED. The judgment of the Superior Court is AFFIRMED.

The motion to withdraw is moot.

                                      BY THE COURT:

                                      /s/ James T. Vaughn, Jr.
                                            Justice




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