     IN THE SUPREME COURT OF THE STATE OF DELAWARE

  EVERETT E. SMITH,                      §
                                         §
        Defendant Below-                 §   No. 202, 2018
        Appellant,                       §
                                         §
        v.                               §   Court Below—Superior Court
                                         §   of the State of Delaware
  STATE OF DELAWARE,                     §
                                         §   Cr. ID No. 1211004907(N)
        Plaintiff Below-                 §
        Appellee.                        §

                             Submitted: October 5, 2018
                             Decided:   November 20, 2018

Before VAUGHN, SEITZ, and TRAYNOR, Justices.

                                    ORDER

      Upon consideration of the parties’ briefs and the record on appeal, it

appears to the Court that:

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

Court’s order dated March 28, 2018, denying his refiled first motion for

postconviction relief under Superior Court Criminal Rule 61. We find no

merit to Smith’s appeal.       Accordingly, we affirm the Superior Court’s

judgment.

      (2)    Smith was indicted in December 2012 on criminal charges

arising from the robbery of a pizza restaurant. In March 2013, before his

scheduled trial, the Superior Court granted defense counsel’s request to have
Smith evaluated to determine his competency to stand trial. Upon receipt of

the report, which was then sealed by court order, a Superior Court

Commissioner provided the parties with the report and gave them ten days to

file a motion for a competency hearing, if a hearing was deemed to be

necessary. No motion was filed. Thereafter, a Superior Court jury convicted

Smith in September 2013 of Attempted Robbery in the Second Degree and

Criminal Mischief. The Superior Court ordered a presentence investigation.

         (3)     Before sentencing, Smith’s counsel requested an updated

psycho-forensic evaluation to determine Smith’s competency to be sentenced.

After receiving the report, which could offer no opinion because of Smith’s

refusal to participate in the evaluation, 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

of probation. In sentencing Smith, the Superior Court specifically considered

Smith’s significant mental health issues to be a mitigating factor and noted

that it was factoring Smith’s mental health needs into the structure of the

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

appeal.1




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


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          (4)   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.

          (5)   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”).

          (6)   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 his sentence because his request to be relocated



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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.

We affirmed that decision on appeal.2

         (7)     Thereafter, Smith refiled his “first” postconviction motion.

Notwithstanding the withdrawal of Smith’s actual first postconviction motion

in March 2017, the Superior Court considered his refiled motion as a timely,

first postconviction motion and considered the merits of Smith’s claims. In

his motion, Smith argued that his trial counsel was ineffective because

counsel: (i) failed to file a motion to have the court open the results of DPC’s

pre-trial competency evaluation; (ii) failed to file to a motion to have the court

open the results of DPC’s pre-sentencing competency evaluation; and (iii)

failed to file a pretrial motion for a competency hearing. The Superior Court

rejected all three claims on the merits.

         (8)     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 seek an independent

psychological examination before sentencing, thus presenting mitigating


2
    Smith v. State, 2017 WL 4786753 (Del. Oct. 23, 2017).


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evidence that would have resulted in a different sentence.                         This issue,

however, was not fairly presented to the Superior Court in his refiled

postconviction motion.3 In the absence of plain error, this Court will not

consider any issue on appeal that was not fairly raised and considered by the

trial court.4 Plain error exists when the error complained of is apparent on the

face of the record and is so prejudicial to a defendant’s substantial rights as to

jeopardize the integrity and fairness of the proceeding.5 The burden of

persuasion is on the defendant to show prejudice.6

        (9)     We find no plain error in this case. The record reflects that

defense counsel sought an updated psycho-forensic examination of Smith

before sentencing to determine his competency to be sentenced.                             DPC

professionals could not issue an opinion on Smith’s competency to be

sentenced, however, because Smith refused to participate in the examination.

Thus, we conclude that counsel committed no error in failing to request

another mental health examination. Moreover, the Superior Court had the

presentence investigation report and DPC’s April 2013 pretrial evaluation of

Smith to review before sentencing. The Superior Court considered Smith’s



3
  See Del. Supr. Ct. R. 8 (providing that the Court will only consider on appeal those issues
that were fairly presented to the trial court, unless the interests of justice require otherwise).
4
  Russell v. State, 5 A.3d 622, 627 (Del. 2010).
5
  Wainwright v. State, 504 A.2d 1096, 1100 (Del. 1986).
6
  Brown v. State, 897 A.2d 748, 753 (Del. 2006).


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significant mental health issues and his history of trauma as mitigating factors

at sentencing. Under these circumstances, Smith cannot establish that an

additional mental health examination would have resulted in a different

outcome.

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

Superior Court is AFFIRMED.

                                       BY THE COURT:

                                       /s/ Collins J. Seitz, Jr.
                                              Justice




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