         IN THE SUPREME COURT OF THE STATE OF DELAWARE

MIGUEL VAZQUEZ-GARCIA,                  §
                                        §   No. 149, 2019
       Defendant Below,                 §
       Appellant,                       §   Court Below: Superior Court
                                        §   of the State of Delaware
       v.                               §
                                        §   Cr. ID No. 1803019333 (N)
STATE OF DELAWARE,                      §
                                        §
       Plaintiff Below,                 §
       Appellee.                        §

                          Submitted: August 26, 2019
                          Decided:   October 10, 2019

Before VAUGHN, SEITZ, and TRAYNOR, Justices.

                                      ORDER

      After consideration of the appellant’s brief filed under Supreme Court Rule

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

concludes that:

      (1)    In May 2018, a grand jury indicted the appellant, Miguel Vazquez-

Garcia, on twenty-five counts of dealing in child pornography. On November 30,

2018, Vazquez-Garcia pled guilty to two counts of dealing in child pornography in

exchange for the State entering a nolle prosequi on the remaining charges. The

Superior Court deferred sentencing and ordered a pre-sentence investigation. On

March 15, 2019, the Superior Court sentenced Vazquez-Garcia, effective March 29,

2018, as follows: (i) for the first count of dealing in child pornography, twenty-five
years of Level V incarceration suspended after five years for decreasing levels of

supervision; and (ii) for the second count of dealing in child pornography, twenty-

five years of Level V incarceration suspended after five years for five years of Level

III probation. This appeal followed.

      (2)    On appeal, Vazquez-Garcia’s counsel (“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. Counsel informed Vazquez-Garcia of the provisions of Rule

26(c) and provided Vazquez-Garcia with a copy of the motion to withdraw and the

accompanying brief.

      (3)    Counsel also informed Vazquez-Garcia of his right to identify any

points he wished this Court to consider on appeal. Vazquez-Garcia has submitted

points for this Court’s consideration. The State has responded to Vazquez-Garcia

arguments and has moved 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)

conduct its own review of the record and determine whether the appeal is so totally




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devoid of at least arguably appealable issues that it can be decided without an

adversary presentation.1

       (5)    Vazquez-Garcia raises two issues on appeal. First, he asks this Court

to consider his mental health in relation to his case. He notes that he has a history

of problems for which he did not receive treatment until he was incarcerated.

Second, he asks this Court to consider that he has no previous criminal or

disciplinary history.

       (6)    To the extent Vazquez-Garcia is challenging his guilty plea on the basis

of his mental health, the record does not support this claim. “The test for determining

a defendant’s competence to plead guilty is whether the defendant had a ‘sufficient

present ability to consult with his lawyer with a reasonable degree of rational

understanding and…a rational as well as factual understanding of the proceedings

against him.’”2 There is nothing in the record of this case to suggest that Vazquez-

Garcia was unable to consult with his counsel with a reasonable degree of rational

understanding or was unable to understand the proceedings against him.

       (7)    During the guilty plea colloquy, Vazquez-Garcia stated that he had

never been a patient in a mental hospital and that he had not taken any drugs or




1
 Penson v. Ohio, 488 U.S. 75, 83 (1988); Leacock v. State, 690 A.2d 926, 927-28 (Del. 1996).
2
 Ellingsworth v. State, 2002 WL 31477130, at *1 (Del. Nov. 4, 2002) (quoting Dusky v. U.S., 362
U.S. 402, 402 (1960)).

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alcohol in the last twenty-four hours. He also affirmed, among other things, that he

understood he would be sentenced to at least four years in prison and could be

sentenced to up to fifty years in prison, he was not a United States citizen and his

guilty plea could result in his deportation, no one promised him what his sentence

would be, and he understood that he was waiving certain rights by pleading guilty.

The record reflects that Vazquez-Garcia understood the guilty plea proceedings and

that his guilty plea was knowing, intelligent, and voluntary.

       (8)    To the extent Vazquez-Garcia is challenging his sentence on the basis

of his mental health and lack of criminal record, this claim is also without merit. In

general, our review of a sentence is limited to determining whether the sentence is

within the statutory limits defined by the General Assembly.3 If the sentence falls

within statutory 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.4 Dealing in child pornography is a Class B

felony5 subject to a sentence of two to twenty-five years of imprisonment.6

Vazquez-Garcia’s sentence—fifty years of Level V incarceration suspended after he

served ten years—falls within the statutory limits.




3
  Kurzmann v. State, 903 A.2d 702, 714 (Del. 2006).
4
  Id.
5
  11 Del. C. § 1109.
6
  11 Del. C. § 4205(b)(2).
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      (9)    Nothing in the record suggests that the sentence was based on factual

predicates which were false, impermissible, or lacked a minimal indicia of

reliability, judicial vindictiveness or bias, or a closed mind. The Superior Court was

aware of Vazquez-Garcia’s mental health issues and lack of criminal history. But

as the Superior Court judge noted, he also had to take into account the risk that

Vazquez-Garcia’s actions and attraction to children, as expressed by Vazquez-

Garcia himself, posed to others in crafting a sentence.

      (10) Having carefully reviewed the record, we conclude that Vazquez-

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

We also are satisfied that Counsel has made a conscientious effort to examine the

record and the law and has properly determined that Vazquez-Garcia 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/ Collins J. Seitz, Jr.
                                                     Justice




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