IN THE SUPREME COURT OF THE STATE OF DELAWARE
WARREN KINZER, §
§ No. 713, 2014
Defendant Below- §
Appellant, §
§
v. § Court Below—Superior Court
§ of the State of Delaware,
STATE OF DELAWARE, § in and for Sussex County
§ Cr. ID 1304021423
Plaintiff Below- §
Appellee. §
Submitted: April 29, 2015
Decided: June 29, 2015
Before STRINE, Chief Justice; HOLLAND, and VAUGHN, Justices.
ORDER
This 29th day of June 2015, upon consideration of the appellant’s opening
brief, the State’s motion to affirm, and the record on appeal, it appears to the Court
that:
(1) The appellant, Warren Kinzer, filed this appeal from the Superior
Court’s denial of his first motion for postconviction relief. The State has filed a
motion to affirm the Superior Court’s judgment on the ground that it is manifest on
the face of Kinzer’s opening brief that his appeal is without. We agree and affirm.
(2) The record reflects that Kinzer pled guilty on November 8, 2013 to
one count each of continuous sexual abuse of a child and second degree sexual
abuse of a child by a person in a position of trust. The victim was Kinzer’s
granddaughter. After a presentence investigation, the Superior Court sentenced
Kinzer to a total period of twenty-eight years at Level V incarceration, to be
suspended after serving twelve years in prison and successful completion of the
Transitions Sex Offender Program for decreasing levels of supervision. Kinzer did
not file a direct appeal. Instead, on August 13, 2014, Kinzer filed a motion for
postconviction relief, which the Superior Court denied on December 2, 2014. This
appeal followed.
(3) In his opening brief on appeal, Kinzer asserts that his guilty plea was
not knowing and voluntary because of the ineffective assistance of his trial
counsel. Kinzer contends that his trial counsel was ineffective for failing to
investigate mitigating evidence, for failing to provide him with a copy of the
presentence investigation report (“PSI”), and for failing to inform him of his right
to appeal.1 Kinzer’s contentions that his trial counsel was ineffective for failing to
provide him with a copy of the PSI and for failing to inform him of his right to
appeal were not raised in the motion he filed in the Superior Court. Absent plain
error, which we do not find, we will not consider these claims for the first time on
appeal.2
1
To the extent Kinzer raised other issues in the motion he filed in the Superior Court, he has
waived his right to review of those claims by failing to argue those issues in his opening brief on
appeal. See Murphy v. State, 632 A.2d 1150, 1152 (Del. 1993).
2
Del. Supr. Ct. R. 8.
2
(4) The only issue properly before the Court is Kinzer’s claim that his
trial counsel was ineffective for failing to investigate mitigating evidence. Kinzer
contends that, if his trial counsel had come to see him promptly after his arrest, he
would have seen evidence of bruising that the victim allegedly inflicted upon him.
Kinzer also asserts that his counsel failed to interview a guidance counselor and the
vice principal of the victim’s school, who would have told counsel that Kinzer
“had a few problems” with his granddaughter. Finally, Kinzer contends that
counsel failed to look at the victim’s cell phone, which would have shown how the
victim treated Kinzer.
(5) To support a claim of ineffective assistance of counsel following the
entry of a guilty plea, a defendant must demonstrate that: (a) counsel’s conduct fell
below an objective standard of reasonableness; and (b) there is a reasonable
probability that, but for counsel’s errors, the defendant would not have pled guilty
but would have insisted on going to trial.3 A defendant must make concrete
allegations of causation and actual prejudice to substantiate a claim of ineffective
assistance of counsel.4 The Superior Court concluded that Kinzer’s allegations
about his attorney’s failure to discover purported mitigating evidence were vague
3
Hill v. Lockhart, 474 U.S. 52, 58 (1985).
4
Younger v. State, 580 A.2d 552, 556 (Del. 1980).
3
and conclusory and failed to establish a reasonable probability that Kinzer would
not have pled guilty.
(6) After careful consideration of the parties’ positions, we find no merit
to Kinzer’s appeal. We agree with the Superior Court’s conclusion that Kinzer’s
claim about his attorney’s failure to present available mitigating evidence is vague
and conclusory and fails to establish how the salleged evidence would have
changed the outcome of the proceeding. Moreover, Kinzer stated under oath at his
plea colloquy that he was satisfied with his counsel’s representation. He indicated
that he fully understood the charges against him and that he understood the
consequences of pleading guilty. He stated that he was pleading guilty because he
was, in fact, guilty of the charged offenses. He also stated, among other things,
that no one had threatened him or coerced him into pleading guilty. In the absence
of clear and convincing evidence to the contrary, Kinzer is bound by these
statements.5 We thus reject Kinzer’s claim that his guilty plea was involuntary due
to his counsel’s ineffectiveness.
5
Somerville v. State, 703 A.2d 629, 632 (Del. 1997).
4
NOW, THEREFORE, IT IS ORDERED that the judgment of the Superior
Court is AFFIRMED.
BY THE COURT:
/s/ Leo E. Strine, Jr.
Chief Justice
5