IN THE SUPREME COURT OF THE STATE OF DELAWARE

MARK Q. GRAYSON, §
§ No. 585, 2015
Defendant BeloW, §
Appellant, § Court BeloW: Superior Court
§ of the State of Delaware
v. §
§ Cr. lDNos. l205001056
STATE OF DELAWARE, § 1208019525
§
Plaintiff BeloW, §
Appellee. §

Submitted: February 26, 2016
Decided: May 16, 2016

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

This 16th day of May 20l6, upon consideration of the parties’ briefs and the
Superior Court record, it appears to the Court that:

(l) This appeal is from the Superior Court’s order dated September 29,
2015, denying a motion for postconviction relief filed by the appellant, Mark Q.
Grayson. We review the denial of postconviction relief for abuse of discretion and

questions of law de novo. In this case, the Court concludes that the denial of

postconviction relief should be affirmed.l

1 Dawson v. State, 673 A.2d ll86, ll90 (Del. 1996).

(2) On March 12, 2013, with the assistance of appointed counsel, Grayson
entered into a plea agreement resolving two indictments. Grayson pled guilty to two
counts of Unlawfully Obtaining Possession of a Prescription Drug and no contest to
Terroristic Threatening of a Public Official.

(3) Under the plea agreernent, Grayson agreed that he qualified for
sentencing as a habitual offender under ll Del. C. § 42l4(a).2 When imposing a
sentence under 11 Del. C. § 42l4(a), the Superior Court has the discretion to impose
a sentence of up to life in prison.3

(4) In Grayson’s case, the State agreed to seek habitual offender sentencing
only for the offense of Terroristic Threatening and to recommend a sentence of only
four years at Level V for that offense. For the two counts of Unlawfully Obtaining
a Prescription Drug, the plea agreement provided for open sentencing following a
presentence investigation.

(5) At sentencing on May 24, 2013, the Superior Court granted the State’s
unopposed motion to declare Grayson a habitual offender and sentenced Grayson to
four years at Level V for Terroristic Threatening. For the two drug convictions, the

Superior Court sentenced Grayson to a total of six years at Level V, suspended after

six months for probation.

2 11 Del. C. §4214(@1) (supp. 2016).
3 ld.

(6) In August 2013, Grayson filed a motion for correction of sentence
claiming that he did not qualify for sentencing as a habitual offender. The Superior
Court denied the motion as without merit.

(7) On March 25, 20l4, Grayson filed a timely motion for postconviction
relief claiming that his guilty plea was involuntary because "[he] did not understand
what [he] was signing." The Superior Court appointed postconviction counsel for
Grayson. After reviewing the record, Grayson’s postconviction counsel moved to
withdraw on the basis that he could find no grounds to seek postconviction relief. In
a supporting memorandum, postconviction counsel explained why he had concluded
that Grayson’s involuntary guilty plea claim was without merit. Grayson filed a
response to postconviction counsel’s motion to withdraw, postconviction counsel
answered Grayson’s response, and the State filed an answer asking the Superior
Court to deny the postconviction motion.

(8) ln his response to postconviction counsel’s motion to withdraw,
Grayson asserted that, before entering into the plea agreement, his guilty plea
counsel told him that the State agreed to recommend no more than four years at
Level V for all three oyj‘enses. Grayson told the Superior Court that support for his
contention could be found in the sentencing transcript from statements made by his

guilty plea counsel at sentencing. Grayson also told the court that he was illiterate

and therefore relied heavily on his counsel to fully explain the terms of the plea
agreement.

(9) The Superior Court denied Grayson’s motion for postconviction relief
and granted postconviction counsel’s motion to withdraw. On appeal from that
order, Grayson reiterates the claims raised in the postconviction proceedings.

(10) To prevail on a postconviction claim of ineffective assistance of
counsel in the context of a guilty plea, a movant must show that counsel’s
representation fell below an objective standard of reasonableness and that, but for
counsel’s unprofessional errors, there is a reasonable probability that the movant
would not have pleaded guilty and would have insisted on going to trial.‘* This Court
has stated that it is preferable for the Superior Court to obtain counsel’s affidavit in
response to claims of ineffective assistance of counsel in a first postconviction
motion.§ There are times, however, when an affidavit is not necessary to evaluate

an ineffective counsel claim, such as when the court assumes for the purpose of

‘*Albury v. S¢a¢e, 551 A.zd 53, 59(1)@1. 1988).

5 Horne v. State, 887 A.2d 973, 975 (Del. 2005) (concluding that the Superior Court record
required trial counsel’s swom testimony to evaluate claim of ineffective assistance of counsel).

4

argument that counsel’s representation was unreasonableé or when the available
record is adequate to resolve the claim.7

(l l) ln this case, the Superior Court did not ask guilty plea counsel to file an
affidavit in response to Grayson’s claim of ineffective assistance of counsel.
Nonetheless, the available record is adequate to review the claim. Assuming, for the
sake of argument, that both Grayson and his guilty plea counsel believed that the
State agreed to recommend no more than four years at Level V for all three offenses
in the plea agreement, and that neither Grayson nor his counsel noticed that the
written plea agreement stated otherwise, the record reflects that Grayson entered into
the guilty plea intelligently and voluntarily.

(12) During the guilty plea colloquy, the Superior Court specifically asked
Grayson if he understood that he could be sentenced to the maximum penalty for
each of the three offenses to which he was pleading guilty. Grayson answered
"Yes."s Moreover, Grayson acknowledged that the terms of the written plea
agreement, which were read to him in open court, represented his understanding of

the agreement, and that he understood that the court was not required to impose the

6 See Franklz'n v. Slate, 2006 WL l374675 (Del. May l7, 2006) (concluding that an affidavit from
defense counsel was not necessary to decide a claim of ineffective assistance of counsel when the
trial judge assumed that counsel’s representation was unreasonable).

7 See Weston v. State, 2007 WL 135606 (Del. Jan. ll, 2007) (concluding that the defendant’s
allegation of ineffective assistance of counsel was sufficiently belied by the record and that neither
the trial court nor the appellate court needed an affidavit from counsel to rule on the claim).

8 Hr’g rr. ar 8 (Mar¢h 12, 2013).

sentence recommended by the State. At no time during the guilty plea hearing or at
sentencing did Grayson complain that his guilty plea counsel failed to fully inform
him about the terms of the plea agreement, the extent of the State’s sentence
recommendation, or the extent of the other penalties he faced under the plea

agreement.

(l3) Also, the Court notes that Grayson did not contend in the
postconviction proceedings that, but for his guilty plea counsel’s alleged
ineffectiveness, he would not have pleaded guilty and would have chosen to proceed
to trial on the charges in the two indictments. This is not surprising. Had he been
tried, convicted, and declared a habitual offender under § 42l4(a) for even one of
the offenses alleged in the two indictments, Grayson could have been sentenced to
life in prison. Under the sentence imposed for his guilty plea, Grayson is required to
serve only four years at Level V for Terroristic Threatening and only six months of
the six years imposed at Level V for the drug charges.

(14) Under all the circumstances, the Court concludes that Grayson’s guilty
plea was voluntary and intelligent notwithstanding the presumed missteps of his
guilty plea counsel. Grayson is bound by his answers on the guilty plea form and
his sworn testimony prior to the Superior Court’s acceptance of the plea.9 Also,

Grayson has not alleged, and the record does not reflect, that but for his guilty plea

9 Somerville v. State, 703 A.2d 629 (Del. l997).
6

counsel’s unprofessional errors, there is a reasonable probability that he would not
have pleaded guilty and would have insisted on going to trial.

NOW, THEREFORE, IT IS ORDERED that the judgment of the Superior
Court is AFFIRMED.

BY THE COURT:

 

ustice

