      IN THE SUPREME COURT OF THE STATE OF DELAWARE

WILLIAM T. WINDSOR, III,               §
                                       §
      Defendant-Below,                 §   No. 10, 2014
      Appellant,                       §
                                       §
      v.                               §   Court Below: Superior Court
                                       §   of the State of Delaware,
STATE OF DELAWARE,                     §   in and for Sussex County
                                       §   Cr. ID 1212009736
      Plaintiff-Below,                 §
      Appellee.                        §

                           Submitted: June 27, 2014
                            Decided: August 28, 2014

Before STRINE, Chief Justice, HOLLAND, and RIDGELY, Justices.

                                 ORDER

      This 28th day of August 2014, 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 February 18, 2013, a grand jury indicted William T.

Windsor, III, on three counts of rape in the second degree, two counts of

continuous sexual abuse of a child, ten counts of sexual abuse of a child by a

person in a position of trust in the first degree, three counts of rape in the

fourth degree, ten counts of sexual solicitation of a child, eighty-seven

counts of sexual abuse of a child by a person of trust in the second degree,

forty-three counts of unlawful sexual contact in the second degree, and two
counts of endangering the welfare of a child. The victims (“Victim 1” and

“Victim 2”) were daughters of Windsor’s girlfriend.

          (2)     Windsor moved for a bill of particulars, to sever the charges

related to the two victims, and to suppress his inculpatory statement to the

police. The Superior Court granted the motion to sever. The parties agreed

that the State would not use Windsor’s statement after the one hour and

twenty-five minute mark of the police interview at trial and the Superior

Court denied the motion to suppress.

          (3)     At an office conference on September 5, 2013, the Superior

Court directed the State to consider reducing the number of charges it

presented at trial.1       The State then requested that the Superior Court

reconsider severance if the number of charges was reduced and the Superior

Court indicated that it would do so.2

          (4)     On September 9, 2013, the morning of jury selection, the State

offered an amended indictment reducing the number of charges involving

Victim 1 from 151 counts to twelve counts and indicated it had a draft

amended indictment reducing the number of charges against Victim 2 from



1
    Appendix to Appellant’s Non-Merit Brief at A52-54.
2
    Id. at A59.



                                           2
nine counts to eight counts.3 The State also sought to rejoin the charges

involving both victims so there could be one trial instead of two.4 The State

indicated it would not oppose a continuance if Windsor was not prepared to

proceed to trial that day on the charges against both victims.5 The Superior

Court denied the request for rejoinder of the charges and held that trial

would proceed the next day, as originally scheduled, on the twelve counts

involving Victim 1.6

          (5)     Later that same day, Windsor pled guilty to one count of rape in

the second degree in the case involving Victim 1 and nolo contendere to

continuous sexual abuse of a child in the case involving Victim 2. Before

accepting his plea, the Superior Court conducted a lengthy colloquy with

Windsor. During the colloquy, Windsor stated under oath that: (i) he had

freely and voluntarily decided to plead guilty to rape in the second degree

and nolo contendere to continuous sexual abuse of a child; (ii) he had not

been promised anything that was not stated in the written plea agreement;

(iii) nobody had forced or threatened him to enter the plea; (iv) he

3
    Id. at A65.
4
    Id. at A65-66.
5
    Id. at A69.
6
    Id. at A75.



                                          3
understood that by entering the plea there would not be a trial and that he

would be waiving several constitutional rights, including the right to be

presumed innocent until the charges were proven beyond a reasonable doubt

and the right to hear and question witnesses; and (v) he understood that he

could receive a total maximum penalty of fifty years of incarceration.7 After

pleading guilty, Windsor sent two letters to the Superior Court inquiring

about the substance of the September 5, 2013 office conference.

         (6)       The sentencing hearing took place on December 13, 2013.

After the Superior Court heard statements from Windsor’s counsel and

relatives, Windsor asked the Superior Court if he could make a Superior

Court Criminal Rule 32(d) (“Rule 32(d)”) motion.8 Under Rule 32(d), the

court may permit withdrawal of a guilty plea or plea of nolo contendere

upon a showing by the defendant of any fair and just reason, if the defendant

moves to withdraw his plea before imposition of the sentence. Windsor’s

counsel did not file a Rule 32(d) motion before the hearing and indicated

that he did not know Windsor was going to make such a request at the

hearing.9 The Superior Court informed Windsor:

7
    Id. at A115-26.
8
    Id. at A139.
9
    Id. at A140, 150.



                                        4
          You know, if you wanted to do such a thing, one minute before
          the sentencing is not the time to do it. It is required by the
          Court that there are motions to be filed. The lawyer makes the
          motion. It is in writing, so something of that nature would have
          to fill that requirement, and that has not happened.

          And the second thing is that under the law there is–on this
          record, on this presentence report, on this plea of guilty, the
          evidence of guilt with respect to [Victim 1] is overwhelming. I
          understand that you pled nolo contendere with respect to the
          charge as to [Victim 2]. I have reviewed the record and that is
          overwhelming as well. You admitted your guilt as to [Victim
          1] with the detective, and there is absolutely–as far as I am
          concerned, what you are attempting to do is a dilatory tactic. It
          is completely out of bounds, and I am not going to hear it.10

          (7)    After hearing statements from the State and the victims, the

Superior Court found there were aggravating factors, including vulnerability

of the victims and lack of remorse. The Superior Court sentenced Windsor

as follows: (i) on rape in the second degree, to twenty-five years of Level V

imprisonment, suspended after twenty years for decreasing levels of

supervision; (ii) on continuous sexual abuse of a child, to twenty-five years

of Level V supervision, suspended after two years for decreasing levels of

supervision. This is Windsor’s direct appeal.

          (8)    On appeal, Windsor’s appellate 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

10
     Id. at A140-41.



                                         5
examination of the record, there are no arguably appealable issues. By

letter, Counsel informed Windsor of the provisions of Rule 26(c) and

provided Windsor with a copy of the motion to withdraw and the

accompanying brief. Counsel also informed Windsor of his right to identify

any points he wished this Court to consider on appeal. Windsor has raised

several issues for this Court’s consideration. The State has responded to the

issues raised by Windsor and moved to affirm the Superior Court’s

judgment.

       (9)    When reviewing a motion to withdraw and an accompanying

brief, 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 devoid of at least arguably appealable issues that it can be decided

without an adversary presentation.11

       (10) The issues Windsor raises on appeal may be fairly summarized

as follows: (i) the Superior Court erred in refusing to let him present the

grounds for a Rule 32(d) motion to withdraw his guilty plea; (ii) the sentence

was outside statutory guidelines, resulted from judicial bias and prejudice,


11
  Penson v. Ohio, 488 U.S. 75, 83 (1988); Leacock v. State, 690 A.2d 926, 927-28 (Del.
1996).



                                          6
exceeded the parties’ “outside oral agreement,”12 and constituted cruel and

unusual punishment under the Eighth Amendment; (iii) his Sixth

Amendment right to confrontation was violated and he was deprived of due

process by the Superior Court limiting the length of his trial to three days;

and (iv) there was prosecutorial misconduct. We address these in turn.

         (11) First, the Superior Court did not err by refusing Windsor’s tardy

pro se request to bring a motion to withdraw his guilty plea. Rule 47 of the

Superior Court Criminal Rules states that the Superior Court “will not

consider pro se applications by defendants who are represented by counsel

unless the defendant has been granted permission to participate with counsel

in the defense.”13 At the time of the sentencing hearing, Windsor was

represented by counsel and had not been granted permission to participate

with his counsel in his defense. Only Windsor’s counsel could act on

Windsor’s behalf in the Superior Court.14 Windsor’s counsel did not file a

Rule 32(d) motion before the sentencing hearing and indicated at the hearing

that he did not know Windsor was going to seek to withdraw his guilty plea.

12
     Opening Brief, Exhibit A at 6.
13
   Super. Ct. Crim. R. 47. See also In re Haskins, 551 A.2d 65, 66 (Del. 1988) (stating
Superior Court had no duty to consider pro se motions filed by criminal defendant
represented by counsel).
14
     Haskins, 551 A.2d at 67.



                                          7
Absent the endorsement of his counsel, Windsor’s attempt to withdraw his

guilty plea under Rule 32(d) was a legal nullity.15 Thus, the Superior Court

was not required to consider Windsor’s last minute attempt to make a pro se

Rule 32(d) motion. That the Superior Court acted within its discretion is

also reinforced by the extensive colloquy that the Superior Court had with

Windsor before accepting his guilty plea. Although Windsor may have

sought to withdraw his guilty plea based on a supposed promise that he

would receive a twelve year sentence, the written plea agreement and plea

colloquy were clear and to the contrary. The plea agreement, signed by

Windsor, expressly stated that the maximum penalty for the offenses was

fifty years incarceration.16 During the plea colloquy, Windsor stated that he

understood each offense was punishable by two to twenty-five years of

incarceration and that the maximum penalty he could receive was up to fifty

years of incarceration, of which twelve years was a minimum-mandatory

sentence.17



15
   Chavous v. State, 953 A.2d 282, 286 (Del. 2008) (prosecutor’s belief that defendant
had breached plea agreement by bringing pro se motion to withdraw guilty plea was
premature because motion was legal nullity until it was endorsed by defendant’s
counsel).
16
     Superior Court Docket Entry 32.
17
     Appendix to Appellant’s Non-Merit Brief at A119-20.



                                           8
           (12) Second, Windsor’s challenges to his sentence are also without

merit. “[A]ppellate review of sentences is extremely limited” in Delaware.18

Appellate review “generally ends upon determination that the sentence is

within the statutory limits prescribed by the legislature.”19         Windsor’s

sentence is within the statutory limits. Rape in the second degree and

continuous sexual abuse of a child are both Class B felonies, so the Superior

Court could impose sentences of up to twenty-five years incarceration for

each crime.20 To the extent Windsor claims his sentence violated sentencing

guidelines, it is settled that the Delaware Sentencing Accountability

Commission Guidelines are voluntary and non-binding.21 A defendant has

no legal or constitutional right to appeal a statutorily authorized sentence

simply because it does not conform to guidelines established by the

Sentencing Accountability Commission.22                The Superior Court found

aggravating factors, including the vulnerability of the victims and Windsor’s

lack of remorse, weighed in favor of a greater sentence.

18
     Mayes v. State, 604 A.2d 839, 842 (Del. 1992).
19
     Ward v. State, 567 A.2d 1296, 1297 (Del. 1989).
20
     11 Del. C. §§ 772, 776, 4205(b)(2).
21
     Mayes, 604 A.2d at 845.
22
     Id.



                                             9
         (13) As far as Windsor’s claim that the Superior Court demonstrated

bias and prejudice by referring to his physical size compared to the victims

and his use of economic pressure on the victims and their mother, Windsor

does not contend that either of those statements was false or based on false

information. And each was a case-specific factor that rationally bore on the

sentence Windsor should receive. The Superior Court imposed the sentence

after receiving the presentence investigation as well as materials submitted

by Windsor’s relatives, reviewing the record, and hearing statements from

Windsor’s counsel, Windsor’s family members, Windsor, the State, and the

victims. The record reflects that the sentence was based on the nature of

Windsor’s crimes and does not support Windsor’s claims of bias and

prejudice.

         (14) Likewise, Windsor’s contention that the sentence exceeded an

“outside oral agreement” with the State for a twelve year sentence is

contradicted by the plea agreement and the plea colloquy.         The plea

agreement, signed by Windsor, expressly stated that the offenses were

subject to a maximum consecutive incarceration of fifty years and that

Windsor was not promised a particular sentence.23 During the plea colloquy,

Windsor stated that he had not been promised anything that was not

23
     Superior Court Docket Entry 32.



                                       10
reflected in the plea agreement and that he understood each offense was

punishable by two to twenty-five years of incarceration.24 The sentence

imposed was within statutory limits and Windsor has not offered any

evidence suggesting that his sentence was grossly disproportionate to his

crimes.25 Thus, his conclusory Eighth Amendment claim, like his other

challenges to his sentence, is without merit.

          (15) Third, Windsor’s claims that he was denied his right to confront

witnesses under the Sixth Amendment and that a three day trial would

deprive him of due process were not raised in the proceedings below.

Therefore, those claims are waived absent plain error.26 An error is plain

when it is “so clearly prejudicial to substantial rights as to jeopardize the

fairness and integrity of the trial process.”27 There is no plain error here.

Windsor does not explain how his right to confront witnesses was violated

and there is no indication in the record that he was deprived of this right. If

Windsor had proceeded to trial, his counsel would have had the opportunity

24
     Appendix to Appellant’s Non-Merit Brief at A115, A119.
25
   Ducote v. State, 2005 WL 1200859, at *3 (Del. May 18, 2005) (rejecting Eighth
Amendment claim of defendant who did not present any evidence suggesting life term
was grossly disproportionate to crime of attempted murder in first degree and who had to
be sentenced to life imprisonment under habitual offender statute).
26
     Supr. Ct. R. 8; Harris v. State, 968 A.2d 32, 35 (Del. 2009).
27
     Wainwright v. State, 504 A.2d 1096, 1100 (Del. 1986).



                                              11
to cross-examine the State’s witnesses. Windsor also fails to explain why a

three day trial was too short for his counsel to call witnesses or present

evidence and does not offer any evidence suggesting he could not have

presented an effective defense within the time allotted. Accordingly, both of

these claims are without merit.

          (16) Fourth, Windsor seems to claim that the prosecution engaged in

misconduct by improperly consolidating the indictment to bring the cases

involving Victim 1 and Victim 2 together, bringing multiple and duplicative

charges, and coercing him into pleading guilty by seeking to rejoin the cases

against Victim 1 and Victim 2. Windsor also complains that he was never

shown the discovery or other materials. Windsor did not object to the

alleged prosecutorial misconduct below, so we also review these claims for

plain error.28

          (17) Windsor cites no legal authority in support of the proposition

that an indictment can only charges offenses relating to one victim. “Two or

more offenses may be charged in the same indictment or information in a

separate count for each offense if the offenses charged are of the same or

similar character….”29 The record also does not support Windsor’s claim

28
     Supr. Ct. R. 8; Harris v. State, 968 A.2d at 35.
29
     Super. Ct. Crim. R. 8(a).


                                               12
that he was deprived of notice and the opportunity to challenge the

“consolidated” charges. In any event, the Superior Court granted Windsor’s

motion to sever the Victim 1 charges from the Victim 2 charges. The State

moved to rejoin the Victim 1 and Victim 2 charges after reducing the

number of charges against both victims as directed by the Superior Court,

but the Superior Court denied that motion. Thus, it is plain that Windsor had

notice and opportunity to challenge the “consolidation” of charges involving

Victim 1 and Victim 2.

         (18) Windsor makes a conclusory claim that the State engaged in

misconduct by bringing multiple, duplicative charges against him, but fails

to identify the counts of the indictment that he contends are based on the

same offense. A person who commits multiple sexual assaults on the same

victim may be convicted and punished for each separate act.30 Windsor was

originally charged with 151 counts involving Victim 1 and nine counts

involving Victim 2, but those counts were later reduced to twelve counts

involving Victim 1 based on multiple sexual acts occurring over a four year

period and eight counts involving Victim 2 based on multiple sexual acts

occurring over a two year period. Windsor has not shown that the charges in

the indictment were unlawfully duplicative.

30
     Feddiman v. State, 558 A.2d 278, 288 (Del. 1989).


                                            13
         (19) Windsor also repackages his claim by arguing that the rejoinder

coerced him into pleading guilty. This claim is entirely without merit.

Windsor stated under oath at his plea colloquy that no one had threatened or

forced him to plead guilty and that he freely and voluntarily pled guilty to

rape second degree and nolo contendere to continuous sexual abuse of a

child.31 Absent clear and convincing evidence to the contrary, Windsor is

bound by these statements.32 A claim of coercion in the plea bargaining

process can only be substantiated if the State threatens to take action or takes

action that is not legally authorized.33 Windsor fails to explain why it was

improper at all, much less coercive, for the State to move to rejoin the

Victim 1 and Victim 2 cases after reducing the number of charges involving

each of the victims as urged by the Superior Court. In any event, the

Superior Court denied the State’s motion to rejoin. Windsor was left to

proceed to trial on twelve charges involving one victim, not a trial involving

both victims with little notice as he appears to suggest.

         (20) Windsor also claims that he accepted the plea bargain because

he was not informed that the number of charges had been reduced and that

31
     Appendix to Appellant’s Non-Merit Brief at A115-16.
32
     Somerville v. State, 703 A.2d 629, 632 (Del. 1997).
33
     Albury v. State, 551 A.2d 53, 61 (Del. 1988).



                                              14
the State’s motion to rejoin the charges involving both victims was denied.

To the extent Windsor is attempting to bring an ineffective assistance of

counsel claim because his counsel was responsible for informing him of

important developments in the litigation,34 this Court does not consider

ineffective assistance of counsel claims raised for the first time on direct

appeal.35 Given the extensive colloquy undertaken before Windsor’s guilty

plea, we are dubious about his contention that he would not have pled guilty

and no contest to crimes against two victims solely because he would have

otherwise faced separate trials as to each set of charges. Nothing in the

record suggests the State was not going to pursue Windsor for convictions as

to crimes against both victims even if it took two trials. In any event, for

present purposes, Windsor may not press a Strickland claim. Relatedly,

although Windsor claims there was prosecutorial misconduct because he was

not shown discovery, an unspecified DVD, or the victim statements, he does

not claim that his counsel lacked access to those materials. In fact, the

record reflects that Windsor’s counsel requested discovery, viewed

Windsor’s confession, and reviewed the victim’s statements.                      The
34
   Cooke v. State, 977 A.2d 803, 841 (Del. 2009) (recognizing defense counsel’s duties
include keeping defendant informed of important developments); Principles of
Professionalism for Delaware Lawyers Rule 1.4(a)(3) (stating lawyer shall keep client
reasonably informed about status of matter).
35
     Wright v. State, 513 A.2d 1310, 1315 (Del. 1986).



                                             15
prosecution was not responsible for ensuring that Windsor personally

viewed materials made available to his counsel.          Windsor’s claim of

prosecutorial misconduct based on his non-viewing of these materials is

therefore without merit.    Again, we are dubious that anything in these

allegations bears a rational connection to Windsor’s decision to plead guilty,

but to the extent he is attempting to raise a Strickland claim based on what

his counsel did with the materials provided by the State, he cannot do so

now on direct appeal.

      (21) This Court has reviewed the record carefully and has concluded

that Windsor’s appeal is wholly without merit and devoid of any arguably

appealable issue. We also are satisfied that Windsor’s counsel has made a

conscientious effort to examine the record and the law and has properly

determined that Windsor 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/ Leo E. Strine, Jr.
                                      Chief Justice




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