IN THE SUPREME COURT OF THE STATE OF DELAWARE
EDWIN SCARBOROUGH, §
§ No. 38, 2014
Defendant Below- §
Appellant, §
§
v. § Court Below—Superior Court
§ of the State of Delaware,
STATE OF DELAWARE, § in and for Kent County
§ Cr. ID 1204019450
Plaintiff Below- §
Appellee. §
Submitted: June 7, 2015
Decided: July 30, 2015
Before HOLLAND, VALIHURA, and SEITZ, Justices.
ORDER
This 30th day of July 2015, upon consideration of the appellant’s brief
filed under Supreme Court Rule 26(c), his attorney’s motion to withdraw,
and the State’s response thereto, it appears to the Court that:
(1) On January 6, 2014, after the Superior Court denied defense
counsel’s motion to suppress, the defendant-appellant, Edwin Scarborough,
pled guilty to one count of Drug Dealing. The Superior Court immediately
sentenced Scarborough, effective September 20, 2012, to a total period of
fifteen years at Level V incarceration, with credit for eleven days served, to
be suspended after serving three years in prison for eight months at Level IV
and eighteen months at Level III probation. This is Scarborough’s direct
appeal.
(2) Scarborough’s counsel filed a brief and a motion to withdraw
under Supreme Court Rule 26(c). Counsel asserted that, based upon a
complete and careful examination of the record, there are no arguably
appealable issues. By letter, counsel informed Scarborough of the
provisions of Rule 26(c) and gave him a copy of the motion to withdraw and
the accompanying brief and appendix. Scarborough also was informed of
his right to supplement counsel’s presentation. Scarborough has raised eight
overlapping issues for inclusion in the Rule 26(c) brief.
(3) After the State filed its response to the Rule 26(c) brief, the
Court stayed further consideration of Scarborough’s appeal pending the
outcome of another case, Brown v. State, No. 178, 2014. The Court issued
its opinion in Brown on January 23, 2015.1 The parties were directed to file
supplemental memoranda addressing the applicability of Brown to
Scarborough’s case. After considering the parties’ supplemental
memoranda, the Court again directed the parties to file additional
supplemental memoranda related to Scarborough’s contention that, although
1
Brown v. State, 108 A.3d 1201 (Del. 2015).
2
his guilty plea was valid, he had not waived his right to appeal the Superior
Court’s denial of his suppression motion.
(4) The Superior Court record reflects that Scarborough was
indicted in this case in July 2012 on charges of Drug Dealing, Endangering
the Welfare of a Child, and Possession of Drug Paraphernalia. Defense
counsel filed eight pre-trial motions including a motion to suppress drug
evidence. A suppression hearing was held on September 4, 2013. The
Superior Court denied Scarborough’s suppression motion, and trial was
scheduled for January 6, 2014.
(5) On the day of trial, at defense counsel’s request, the Superior
Court engaged in a colloquy with Scarborough about a plea offer made by
the State to resolve Scarborough’s current charges in Cr. ID 1204019450, as
well as another set of criminal charges pending against him in Cr. ID
1208002007. Scarborough told the Superior Court that he was interested in
resolving both cases but that he did not want to accept the State’s offer
because he was not happy with the length of the State’s recommended total
sentence of eight years (even though he was facing the possibility of a life
sentence because of his prior criminal record). The judge informed
Scarborough that he could resolve just his current case by a plea, rather than
both cases together, or he could choose to go to trial on his current charges if
3
he believed that “the suppression decision is bad.”2 The Superior Court
recessed to allow Scarborough to consult with his counsel and to reconsider
the State’s plea offer in light of the judge’s colloquy.
(6) Upon returning from the recess, defense counsel informed the
judge that he had discussed the State’s plea offer with Scarborough, that
Scarborough understood all the constitutional rights that he was waiving by
pleading guilty, and that he knowingly and voluntarily decided to enter a
guilty plea. The judge then engaged in a second colloquy with Scarborough
in open court. Scarborough informed the judge that he understood the
charges against him and that he was pleading guilty to Drug Dealing because
he was, in fact, guilty of that offense. Scarborough stated that he had
reviewed the guilty plea agreement and that he understood its meaning.
Scarborough also told the judge that no one was forcing him to plead guilty,
that he was not under the influence of any medications, that he had not been
under the care of a psychologist in the last two years, and that he was
satisfied with his counsel’s representation.
(7) Scarborough told the judge that he understood the
consequences of what he was doing. When asked if he had any questions,
Scarborough’s only question was whether the judge would allow him to be
2
Opening Br. App. at A-209.
4
held at Level III while awaiting space in a Level IV facility. The Superior
Court accepted Scarborough’s plea and sentenced him in accordance with
his plea agreement to fifteen years at Level V incarceration to be suspended
after serving three years in prison for decreasing levels of supervision. This
appeal followed.
(8) The standard and scope of review applicable to the
consideration of defense counsel’s 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 in order to determine
whether the appeal is so totally devoid of at least arguably appealable issues
that it can be decided without an adversary presentation.3
(9) In response to his counsel’s motion to withdraw, Scarborough
enumerated eight overlapping issues for the Court’s consideration: (i) the
Superior Court erred in denying his motion to suppress; (ii) the arresting
officers violated the “knock and announce” rule; (iii) his arrest was
pretextual; (iv) his counsel was ineffective for failing to file an interlocutory
appeal from the denial of the suppression motion; (v) his counsel was
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).
5
ineffective for failing to interview a defense witness, who turned out to be
hostile, before the suppression hearing; (vi) his counsel was ineffective
because he failed to argue that his arrest was pretextual; (vii) he never
waived his right to appeal the suppression ruling because he did not check
“yes” or “no” to the question on his guilty plea agreement indicating that he
understood he was waiving all of his trial and appeal rights by pleading
guilty; and (viii) the State did not prove the authenticity of the drug lab
report and that, in light of the recent scandal at the Office of the Chief
Medical Examiner, there is a “reasonable chance” that the drug evidence in
his case had been tampered with.
(10) With the exception of his ineffective assistance of counsel
claims, which we decline to consider for the first time in this direct appeal,4
the disposition of Scarborough’s remaining claims hinges on the Court’s
determination of whether Scarborough entered his guilty plea knowingly,
intelligently, and voluntarily.5 It is well-settled that a knowing and
voluntary guilty plea waives a defendant’s right to challenge any errors
4
Sahin v. State, 7 A.3d 450, 451 (Del. 2010).
5
Lewis v. State, 2010 WL 2163910, at *1 (Del. May 11, 2010).
6
occurring before the entry of the plea, “even those of constitutional
dimensions.”6
(11) In the points he filed to be included in his counsel’s Rule 26(c)
brief, Scarborough states, “[t]he defendant is not challenging the validity of
the plea because he voluntarily signed it, however he did not knowingly and
voluntarily waive his rights to appeal and challenge the suppression issues.”7
Scarborough points to two alleged errors in the record to support his
contention that he did not waive his right to appeal. First, he points out that
he did not check either “Yes” or “No” to the question on the guilty plea
agreement asking:
“Do you understand that because you are pleading guilty you will not
have a trial, and you therefore waive (give up) your constitutional rights:
(1) to have a lawyer represent you at trial; (2) to be presumed innocent
until the State can prove each and every part of the charge(s) against you
beyond a reasonable doubt; (3) to a speedy and public trial by jury; (4) to
hear and question the witnesses against you; (5) to present evidence in
your defense; (6) to testify or not testify yourself; and (7) to appeal, if
convicted, to the Delaware Supreme Court with assistance of a lawyer?”
Second, Scarborough asserts that when the judge asked him if he understood
the rights he was giving up, the judge did not wait for Scarborough to reply.8
6
Wilson v. State, 2010 WL 572114, at *2 (Del. Feb. 18, 2010) (quoting Smith v. State,
2004 WL 120530, at *1 (Del. Jan. 15, 2004)).
7
Defendant’s Points at 32.
8
The transcript of the guilty plea hearing reflects the following exchange:
7
(12) We find no merit to this argument. Scarborough acknowledges
in this appeal that he is not challenging the validity of his guilty plea.
Moreover, it is clear from the entire context of the proceedings below that
the Superior Court informed Scarborough—and Scarborough understood—
that, if he thought the Superior Court had erred in ruling on his suppression
motion, then Scarborough’s only option was to go to trial and then appeal.
THE COURT: In my left hand I also have the Truth in Sentencing Guilty
Plea Form. Did you review the questions and provide the
information shown?
THE DEFENDANT: Yes, sir.
THE COURT: Did you understand the Constitutional Rights and civil
liberties you would be giving up by entering this plea?
Now, the other two misdemeanors – he’s not pleading to
those, right?
[COUNSEL]: That’s correct, Your Honor.
Are those on the form?
THE COURT: Yes. That’s okay; I can mark them off.
And you face from zero to 15 years?
THE DEFENDANT: Yes, sir.
THE COURT: I will just put my initials right here.
Is that your signature?
THE DEFENDANT: Yes, sir.
THE COURT: Do you have any questions for the Court regarding either
document or any other aspect in this matter?
THE DEFENDANT: Yes, one question.
THE COURT: What’s that?
THE DEFENDANT: The Level 4 time – I mean, I know it’s – you know, it’s not
the norm, as Ms. Williams told me; but is there any way I can
be held at Level 3 before I go to Level 4? I know it might
now happen, but I just had to ask.
Appellant’s Opening Brief app. at A218-19.
8
In his points, Scarborough also acknowledges his understanding that, if he
had wished to retain his right to appeal the suppression ruling, he could have
negotiated an agreement with the State to hold a stipulated trial.9
(13) Scarborough did not have a stipulated trial, however. Instead,
the record reflects that he knowingly, intelligently, and voluntarily pled
guilty with a full understanding of the rights he was waiving, including his
right to appeal the suppression ruling. His failure to check either the “yes”
or “no” box to the question asking whether he understood the trial rights he
was waiving was merely an oversight that did not affect Scarborough’s
substantial rights.10
(14) Under the circumstances of this case, we find that
Scarborough’s knowing, intelligent, and voluntary guilty plea waived his
right to challenge the suppression ruling and the authenticity of the testing of
the drug evidence.11 We have reviewed the record carefully and conclude
that Scarborough’s appeal is wholly without merit and devoid of any
9
Defendant’s Points at 7. See, e.g., Lambert v. State, 110 A.3d 1253, 1255 (Del. 2015)
(the parties agreed to a trial by stipulation, which allowed the defendant to retain his right
to appeal the Superior Court’s suppression ruling).
10
Abdul-Akbar v. State, 1999 WL 507292 (Del. June 1, 1999) (citing Superior Court
Criminal Rule 11(h) and holding that the defendant’s failure to execute a guilty plea
waiver of rights form did not affect his substantial rights and render his guilty plea
invalid).
11
Brown v. State, 108 A.3d 1201, 1202 (Del. 2015) (holding that the defendant’s valid
guilty plea waived any right to challenge the strength of the State’s evidence, including
the chain of custody of the drug evidence).
9
arguably appealable issue. We also are satisfied that Scarborough’s counsel
has made a conscientious effort to examine the record and has properly
determined that Scarborough 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/Karen L. Valihura
Justice
10