CROSBY v. STATE, 843 A.2d 695 (Del. 2004)

No. 411, 2003.Supreme Court of Delaware.Submitted: January 22, 2004.
Decided: February 17, 2004.

Court Below — Superior Court of the State of Delaware, in and for New Castle County, Cr. A. Nos. IN01-06-1203; 1206.

Before BERGER, STEELE and JACOBS, Justices.

ORDER
Myron T. Steele Justice.

This 17th day of February 2004, upon consideration of the appellant’s brief filed pursuant to Supreme Court Rule 26(c), his attorney’s motion to withdraw, and the State’s response thereto, it appears to the Court that:

(1) The defendant-appellant, Chris A. Crosby, pleaded guilty to Forgery in the Second Degree and Criminal Impersonation. He was sentenced as an habitual offender[1] to 8 years incarceration at Level V on the forgery conviction. He also was sentenced to 1 year incarceration at Level V, to be suspended for Level IV probation, on the criminal impersonation conviction. This is Crosby’s direct appeal from his convictions and sentences.[2]

(2) Crosby’s counsel has filed a brief and a motion to withdraw pursuant to Rule 26(c). 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 devoid of at least arguably appealable issues that it can be decided without an adversary presentation.[3]

(3) Crosby’s counsel asserts that, based upon a careful and complete examination of the record, there are no arguably appealable issues. By letter, Crosby’s counsel informed Crosby of the provisions of Rule 26(c) and provided him with a copy of the motion to withdraw, the accompanying brief and the complete trial transcript. Crosby was also informed of his right to supplement his attorney’s presentation. Crosby responded with a brief that raises two issues for this Court’s consideration. The State has responded to the position taken by Crosby’s counsel as well as the issues raised by Crosby and has moved to affirm the Superior Court’s judgment.

(4) The two claims that Crosby raises are that: a) his conduct did not encompass all the elements of the crime of forgery; and b) the habitual offender statute is unconstitutional.

(5) The transcript of the guilty plea hearing reflects that, during Crosby’s colloquy with the Superior Court, he acknowledged that he was not under the influence of alcohol or drugs, he understood he would be sentenced as an habitual offender, no one had promised him what his sentence would be, he actually committed the crimes with which he was charged, he was satisfied with his counsel’s performance, and he was entering his guilty plea knowingly, intelligently and voluntarily. In the absence of clear and convincing evidence to the contrary, Crosby is bound by those representations.[4] Moreover, Crosby’s voluntary guilty plea constitutes a waiver of any alleged defects or errors occurring prior to the entry of the plea.[5]

(6) This Court has reviewed the record carefully and has concluded that Crosby’s appeal is wholly without merit and devoid of any arguably appealable issue. We also are satisfied that Crosby’s counsel has made a conscientious effort to examine the record and has properly determined that Crosby 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.