Opinion
Docket No. 459, 1998.
June 1, 1999.
Appeal from Superior Court, Sussex County, CrA S98-02-0208.
AFFIRMED.
Unpublished Opinion is below.
DEBRO ABDUL-AKBAR, Defendant Below, Appellant, v. STATE OF DELAWARE, Plaintiff Below, Appellee. No. 459, 1998. Supreme Court of Delaware. Submitted: April 29, 1999. Decided: June 1, 1999.
Court Below: Superior Court of the State of Delaware in and for Sussex County in Cr. A. No. S98-02-0208, Def ID No. 9801014443.
Before WALSH, HOLLAND and HARTNETT, Justices.
ORDER
This first day of June 1999, upon consideration of the appellant's brief filed pursuant to Supreme Court Rule 26(c) ("Rule 26(c)"), his attorney's motion to withdraw, the State's response, and the State's supplemental response, it appears to the Court that:
(1) Debro Abdul-Akbar was indicted on one count of assault in a detention facility. Prior to trial, the Superior Court granted Abdul-Akbar's request to proceed pro se in his defense. Defense counsel remained available in an advisory capacity to Abdul-Akbar during the trial.
(2) On the third day of trial, the Superior Court granted Abdul-Akbar's request to have his advisory counsel participate as his co-counsel. Later that day, Abdul-Akbar pleaded guilty to the lesser-included offense of third degree assault.
(3) Abdul-Akbar was immediately sentenced to one year of imprisonment suspended after six months for the balance at Level II probation. This is Abdul-Akbar's direct appeal.
(4) Abdul-Akbar's co-counsel has filed a brief and a motion to withdraw pursuant to Rule 26(c). Counsel asserts that, based upon a complete and careful examination of the record, there are no arguably appealable issues. Counsel informed Abdul-Akbar of the provisions of Rule 26(c) and provided Abdul-Akbar with a copy of the motion to withdraw, the accompanying brief, and the complete trial transcript. Abdul-Akbar also was informed of his right to supplement his counsel's presentation. Abdul-Akbar did not submit written remarks to his counsel. But, in previous papers filed in this Court, Abdul-Akbar stated that he wished to raise on appeal allegations of "judicial misconduct, "prosecutorial misconduct," and "ineffective assistance of counsel."
Co-counsel's brief was filed on March 17, 1999. By Order dated April 15, 1999, the Court appointed a substitute counsel to replace co-counsel who was preparing to be sworn in as a judge of the Court of Common Pleas on April 23, 1999.
(5) The State has responded to the position taken by Abdul-Akbar's counsel as well as to the allegations raised by Abdul-Akbar. The State has also filed a supplemental response, as directed by this Court.
(6) 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) the Court must be satisfied that defense counsel has made a conscientious examination of the record and the law for claims that could arguably support the appeal; and (b) the 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.
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).
(7) Abdul-Akbar complains that he was "railroaded" by his counsel and that, as a result, his guilty plea was involuntary. Second, Abdul-Akbar complains that the trial judge and the prosecutor committed "misconduct" because the State's plea offer was not extended until after final case review.
(8) Abdul-Akbar cites no legal authority for the proposition that a plea offer extended by the State after final case review constitutes prosecutorial and/or judicial misconduct. We find Abdul-Akbar's contention to be without merit.
(9) Abdul-Akbar did not move to withdraw his guilty plea in the Superior Court. Consequently, the issue whether his guilty plea was entered knowingly and voluntarily can be reviewed by this Court only for plain error. Under the "plain error" standard of review, "the error complained of must be so clearly prejudicial to substantial rights as to jeopardize the fairness and integrity of the trial process."
See Sullivan v. State, Del.Supr., 636 A.2d 931, 937 (1994) (reviewing record of guilty plea for plain error).
Chance v. State, Del.Supr., 685 A.2d 351, 354 (1996)
(10) Abdul-Akbar has failed to demonstrate any plain error in the entry and acceptance of his guilty plea. The record is clear that the trial judge conducted a careful and complete guilty plea colloquy prior to accepting Abdul-Akbar's guilty plea. The parties did not execute a guilty plea waiver of rights form. But, in this case such an omission did not affect Abdul-Akbar's substantial rights. Abdul-Akbar's waiver of his right to trial, as well as the constitutional rights which he would have been entitled to exercise at trial, was knowing and voluntary.
See Howard v. State, Del.Supr., 458 A.2d 1180, 1185 (1983) (listing required elements of plea colloquy).
See Supr.Ct.Crim.R. 11(g) (requiring that record include a completed and executed waiver of rights form).
See Supr.Ct.Crim.R. 11(h) (providing that any variance from guilty plea procedures not affecting substantial rights shall be disregarded).
(11) Abdul-Akbar's last claim, that his defense counsel was ineffective, cannot be raised in this direct appeal. This Court will not consider allegations of ineffective assistance of counsel which were not determined on the merits in the Superior Court. Accordingly, we decline to review this claim.
Duross v. State, Del.Supr., 494 A.2d 1265, 1269 (1985).
Wright v. State, Del.Supr., 513 A.2d 1310, 1315 (1986).
(12) This Court has reviewed the record carefully and has concluded that Abdul-Akbar's appeal is wholly without merit and devoid of any arguably appealable issue. We also are satisfied that Abdul-Akbar's co-counsel has made a conscientious effort to examine the record and has properly determined that Abdul-Akbar could not raise a meritorious claim in this appeal.
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/ Randy J. Holland
Justice