      IN THE SUPREME COURT OF THE STATE OF DELAWARE

 JEFFREY KENT,                           §
                                         §   No. 8, 2018
       Defendant Below-                  §
       Appellant,                        §
                                         §
       v.                                §   Court Below—Superior Court
                                         §   of the State of Delaware
 STATE OF DELAWARE,                      §
                                         §   ID. No. 1302002915 (N)
       Plaintiff Below-                  §
       Appellee.                         §

                           Submitted: April 18, 2018
                            Decided: June 26, 2018

Before VALIHURA, VAUGHN, and SEITZ, Justices.

                                  ORDER

      This 26th day of June 2018, upon consideration of the appellant's

Supreme Court Rule 26(c) brief, his attorney’s motion to withdraw, and the

State’s response thereto, it appears to the Court that:

      (1)    In September 2014, a Superior Court jury convicted the

defendant-appellant, Jeffrey Kent, of Murder in the First Degree and

Possession of a Firearm During the Commission of a Felony (“PFDCF”).

After denying Kent’s motions for judgment of acquittal and for a new trial,
the Superior Court sentenced Kent to life imprisonment plus a term of years.

This Court affirmed his convictions and sentence on direct appeal.1

         (2)     Kent filed a motion for postconviction relief and a motion for

appointment of counsel in April 2016. The Superior Court appointed counsel

to represent him and gave appointed counsel the opportunity to file an

amended motion under Rule 61. The amended motion raised three claims of

ineffective assistance of trial counsel. After obtaining responses from Kent’s

trial counsel and from the State, as well as Kent’s reply, a Superior Court

Commissioner issued a report on September 5, 2017, recommending that

Kent’s amended motion for postconviction relief be denied.2 On December

5, 2017, the Superior Court adopted the Commissioner’s report and

recommendation and denied Kent’s motion. This appeal followed.

         (3)     On appeal, Kent’s counsel has filed a brief and a motion to

withdraw under Rule 26(c). Appellate counsel asserts that, based upon a

complete and careful examination of the record, there are no arguably

appealable issues.         By letter, appellate counsel informed Kent of the

provisions of Rule 26(c) and provided him with a copy of the motion to

withdraw and the accompanying brief. Kent also was informed of his right to



1
    Kent v. State, 2016 WL 1039125 (Del. Mar. 11, 2016).
2
    State v. Kent, 2017 WL 3891448 (Del. Super. Sept. 5, 2017).
                                             2
supplement his attorney’s presentation. In response to appellate counsel’s

motion and brief, Kent has raised several issues for this Court’s consideration.

The State has responded to Kent’s points, as well as to the position taken by

Kent’s counsel, and has moved to affirm the Superior Court’s judgment.

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

of a motion to withdraw and an accompanying brief under Rule 26(c) is

twofold: (a) this Court must be satisfied that defense counsel has made a

conscientious examination of the record and the law for arguable claims; and

(b) this Court must 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.3

      (5)    The following recitation of facts is taken from this Court’s

decision on Kent’s direct appeal:

             On June 30, 2011, Dewey Lee was stopped at the intersection of
      West 8th and Monroe Streets in Wilmington, Delaware. While he was
      stopped, a man on a bicycle approached his vehicle and began speaking
      with him. At some point during the conversation, the man on the bicycle
      shot Lee. Lee’s vehicle then accelerated west on 8th Street before
      striking a utility pole. The man on the bicycle fled north on Monroe
      Street.
             When the Wilmington Police responded to the scene, they found
      Lee behind the wheel of his vehicle. He was unresponsive and bleeding
      from a gunshot wound to his torso. He died as a result. During the
      investigation, the Wilmington Police located three eyewitnesses:

3
 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).
                                         3
Thurman Boston, Brianna Brown (“Brianna”), and Dajuan’ya Brown
(“Dajuan’ya”). All three identified Kent as the man on the bicycle.
       In February 2013, Kent was indicted on charges of Murder in the
First Degree and PFDCF. Two attorneys from the Public Defender's
Office (“PDO”) were appointed to represent him. Shortly after being
appointed, Kent’s counsel sent the State a discovery request, which
included a request for a list of the State's witnesses. The State responded,
but did not provide a list of witnesses, citing concerns for the witnesses’
safety. This concern may have received some confirmation in May 2014
when Wilmington Police came into possession of a letter from Kent
requesting that his nephew locate the witnesses to the crime.
       On July 16, 2014, defense counsel again requested a witness list.
One reason defense counsel requested the names of the witnesses was to
identify potential conflicts of interest. The State requested a protective
order for the witness list on July 29, 2014, protecting against disclosure
of the names to the defendant. In the weeks that followed, a number of
witness statements were provided to Kent’s attorneys.
       Jury selection was scheduled to begin on September 8, 2014. On
September 2, 2014, the State provided the transcript of Monica Miller’s
statement wherein she stated that she was with Brianna and Dajuan'ya
at the time of the incident and that one could not see the intersection of
8th and Monroe from their vantage point.
       On September 6, 2014, the State advised Kent’s trial counsel that
the statements of Wallace Archy, Dexter Briggs, and Raheem Smith
would not be disclosed because the statements contained no Brady
material. The next day, the State changed its position and provided
Archy’s and Smith’s statements. In his statement, Archy stated that the
shooting occurred at a different intersection, 8th and Washington. Smith
told police that he did not see a white person at 8th and Monroe (the
victim was white), and that it was impossible to see the intersection from
where Brianna and Dajuan’ya were located.
       On the same day that the Archy and Smith statements were
disclosed, Kent filed a motion to dismiss, alleging that the Miller, Archy,
and Smith statements contained Brady material, which was disclosed in
an untimely manner and prevented defense counsel from using the
evidence effectively. The following day, the trial court held a hearing on
the motion. The trial court denied Kent’s motion because Kent’s trial
counsel had been provided the witnesses’ statements, and the State was
making all three witnesses available to be interviewed by defense


                                  4
counsel. The jury was selected on September 8, 2014, and trial
commenced on September 10, 2014.
        During pretrial proceedings, the trial court also heard arguments
regarding a potential conflict of interest resulting from the PDO’s
representation of Boston in an unrelated matter. At the trial court’s
request, Kent filed a memorandum of law requesting that the PDO be
allowed to withdraw as Kent’s counsel, or in the alternative, prohibiting
Boston from being called as a witness. On August 26, 2014, the trial
court requested additional information in support of Kent’s motion for
an in-camera review. Kent’s trial counsel declined to provide the
additional information requested on the grounds that Boston did not give
permission to release confidential information. On September 2, 2014,
the trial court reminded Kent’s trial counsel that it could reveal Boston’s
confidential information upon court order, but counsel did not respond
or comply with the trial court’s request until after the trial court informed
counsel of its decision to deny the request.
        The trial court issued an opinion denying Kent’s motion to
prohibit Boston from being called as a witness or for appointment of
new counsel on September 3, 2014. The representation of Boston had
concluded by March of 2014, approximately six months before Kent’s
trial. The trial court found that Kent’s trial counsel failed to meet their
burden of showing that a conflict did exist because the only evidence
offered was an alleged conflict due to Boston’s mental health history,
which the trial court determined was public knowledge. Without any
other evidence, the trial court held that there was no actual conflict
regarding the representation of Boston on the unrelated charges.
        At trial, Boston testified for the State that he was behind Lee at
the intersection and that Kent was the shooter. Brianna and Dajuan’ya
both testified that they saw Kent from the stoop of their home at 814
West 8th Street. Miller testified for the defense that she was with
Brianna and Dajuan’ya at the time of the incident, and that one could
not see the intersection of West 8th and Monroe from the steps of 814
West 8th Street. Archy, also called by the defense, testified that he was
on Monroe Street between 7th and 8th on the evening of the incident.
He further testified that he did not observe Lee’s vehicle stopped at the
intersection and that he saw it speed through the intersection. Although
Kent’s trial counsel was able to interview Smith, he was not called as a
witness.
        During closing arguments, Kent’s trial counsel implied that
Boston may have received a benefit for testifying against Kent. Trial
                                  5
        counsel also implied that Boston changed his story to comport with
        Brianna and Dajuan’ya. In response, the State argued that the jury could
        only believe trial counsel’s suggestion if the jurors were to violate the
        rule on speculation because there was no evidence that Boston received
        a benefit, only that he was hoping for help with his case. The State also
        argued that there was no evidence presented to support a finding that
        Boston changed his story to appear more credible.
                The State also argued that Kent’s trial counsel did not read the
        entire redacted letter that Kent had written to his nephew, a statement
        which was not correct. After the trial court admonished the State
        regarding the inaccuracy of its statement, the State informed the jury that
        it was mistaken and that Kent’s trial counsel had, in fact, read the entire
        letter. Shortly after, the State argued that Archy heard a gunshot and
        immediately saw a vehicle travel through the intersection. After it was
        brought to the State’s attention that this was incorrect, the State informed
        the jury that there was a ten to fifteen second delay between the gunshot
        and when Archy saw the vehicle speed through the intersection. Kent
        was convicted of Murder in the First Degree and PFDCF.

         (6)    On direct appeal, Kent raised three issues. First, he argued that

the State committed a Brady4 violation by not providing the statements of

three witnesses in a timely fashion. Second, he argued that the prosecutor

engaged in misconduct during closing arguments. Finally, he asserted that the

trial court erred in denying the motion to withdraw as counsel or, alternatively,

to preclude the testimony of Boston. We rejected all three claims.5

          (7)   In his amended postconviction motion, Kent also raised three

issues. First, he asserted that his trial counsel was ineffective for failing to

investigate and call two witnesses who could have provided exculpatory


4
    Brady v. Maryland, 373 U.S. 83 (1963).
5
    Kent v. State, 2016 WL 1039125, at *3-4.
                                               6
testimony. Second, he argued that trial counsel was ineffective for failing to

present evidence to corroborate Monica Miller’s testimony that the

intersection of 8th and Monroe Streets was not visible from the steps of 814

W. 8th Street, in order to discredit the eyewitness identification of Brianna and

Dajuan’ya Brown. Finally, Kent argued that his trial counsel was ineffective

for failing to call Siron Chambers as a witness because Chambers had

provided a statement to the police on July 3, 2011 admitting that he and his

girlfriend had attempted to steal the victim’s wallet after his truck crashed near

their house and that he never saw Kent (whom he knew) in the area.

       (8)     After trial counsel filed an affidavit and the State filed its

response to the amended motion, Kent’s postconviction counsel filed a reply

and withdrew the first two claims raised in the amended motion. 6

Accordingly, the Commissioner deemed those claims to be waived and only

addressed the third argument.               The Commissioner concluded, after

considering the entirety of Chambers’ police statement, that trial counsel was

not ineffective for deciding not to call Chambers as a witness. The Superior

Court adopted the Commissioner’s reasoning and denied Kent’s motion.




6
 As postconviction counsel explains, he did not have access to trial counsel’s case log and
contemporaneous notes at the time the amended postconviction motion was prepared.
After receiving the notes and trial counsel’s affidavit, postconviction counsel found no
good faith basis to pursue the first two claims.
                                            7
       (9)    On appeal, Kent raises four claims in response to his counsel’s

Rule 26(c) brief. First, he contends that his trial counsel was ineffective for

failing to request a continuance to corroborate the testimony of favorable

defense witnesses. Second, he contends that his trial counsel was ineffective

for failing to request lesser included offense jury instructions on second

degree murder or manslaughter. Third, he contends that the evidence was

insufficient to find him guilty of first degree murder because there was no

evidence of intent. Finally, he contends that his trial counsel was ineffective

for failing to provide the Superior Court with the additional information that

was requested concerning the PDO’s conflict of interest arising from its

former representation of Boston.7

       (10) As the State correctly points out in its response, in the absence of

plain error, this Court will not consider on appeal any issue that was not raised

and considered by the trial court in the first instance.8 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 trial.9


7
  Kent does not challenge the Superior Court’s rejection of the claim he argued below
concerning Siron Chambers. Thus, he has waived further review of that claim. Murphy v.
State, 632 A.2d 1150, 1152 (Del. 1993)
8
  Del. Supr. Ct. R. 8; Wainwright v. State, 504 A.2d 1096, 1100 (Del. 1986).
9
  Wainwright v. State, 504 A.2d at 1100.
                                          8
       (11) With respect to Kent’s claim challenging the sufficiency of the

evidence to convict him of first degree murder, we hold that this claim is

procedurally barred.           Superior Court Criminal Rule 61(i)(4) bars

reconsideration of any previously adjudicated claim. Kent filed a motion for

judgment of acquittal after the jury rendered its verdict. His motion was

denied, and he did not appeal that ruling. Under the circumstances, his claim

is barred as previously adjudicated, and he has failed to overcome that

procedural hurdle under Rule 61(i)(5).10

       (12) With respect to Kent’s three new claims of ineffective assistance

of counsel, we find no plain error. Kent first argues that counsel was

ineffective for failing to request a continuance to investigate corroborating,

favorable defense witnesses.            But Kent does not identify who these

corroborating witnesses are or what favorable corroborating testimony they

could have provided. This vague and conclusory allegation is insufficient to

establish a claim of ineffective assistance of counsel.11




10
   Under Rule 61(i)(5), the procedural bars of Rule 61(i)(1)-(4) do not apply to a claim that
the trial court lacked jurisdiction or to a claim alleging new evidence creating a strong
inference of actual innocence or to a claim that a new, retroactively-applicable rule of
constitutional law renders the defendant’s conviction invalid.
11
   See Younger v. State, 580 A.2d 552, 555 (Del. 1980) (holding that the burden is on the
defendant in a postconviction proceeding to make concrete allegations of cause and actual
prejudice to substantiate a claim of ineffective assistance of counsel or else risk summary
dismissal).
                                             9
       (13) Moreover, we find no plain error with respect to counsel’s failure

to request lesser included offense instructions. Kent’s defense at trial was that

he was not the shooter. Lesser included offense instructions would have been

inconsistent with Kent’s mistaken identity defense. We thus find no plain

error in counsel’s failure to request lesser included offense instructions.12

       (14) Finally, Kent argues this trial counsel was ineffective for failing

to provide additional information requested by the trial judge about the PDO’s

alleged conflict of interest arising from its former representation of Boston.

The record reflects that counsel did provide the information, under seal, but

did not do so until after the trial court had denied the motion. Kent does not

argue, and there is nothing in the record to reflect, that the Superior Court

would have granted counsel’s motion if the information had been provided

sooner. Under the circumstances, we find no plain error.

       (15) We have reviewed the record carefully and conclude that Kent’s

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

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

examine the record and the law and has properly determined that Kent could

not raise a meritorious claim in this appeal.


12
   See Allison v. State, 2010 WL 3733919, *2 (Del. Sep. 24, 2010) (finding counsel was
not ineffective for not requesting an LIO instruction because it would have been
inconsistent with the defendant’s actual innocence defense).
                                         10
      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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