No. 540, 2002.Supreme Court of Delaware.Submitted: December 20, 2002.
Decided: March 25, 2003.
Court Below-Superior Court of the State of Delaware, in and for Sussex County Cr.A. Nos. S99-05-0001; 0002; 0003; 0004; 0005
Before VEASEY, Chief Justice, WALSH and STEELE, Justices
E. Norman Veasey, Chief Justice
ORDER
This 25th day of March 2003, upon consideration of the appellant’s opening brief and the appellee’s motion to affirm pursuant to Supreme Court Rule 25(a), it appears to the Court that:
(1) The defendant-appellant, Lawrence P. Whalen, filed an appeal from the Superior Court’s November 28, 2001 denial of his motion for postconviction relief pursuant to Superior Court Criminal Rule 61. The plaintiff-appellant, the State of Delaware, has moved to affirm the judgment of the Superior Court on the ground that it is manifest on the face of Whalen’s opening brief that the appeal is without merit.[1] We agree and AFFIRM.
(2) In 1995, Whalen was convicted of Unlawful Sexual Intercourse in the Second Degree. In October 1998, Whalen was indicted on the charge of Continuous Sexual Abuse of a Child. In May 1999, Whalen was convicted of five counts of Unlawful Sexual Contact in the Third Degree.[2] He was sentenced to a total of 5 years incarceration at Level V, to be suspended after year for 4 years at Level III probation. Whalen did not file a direct appeal from his convictions or sentences.
(3) In August 1999, Whalen moved for modification of his sentence,[3]
which was denied by the Superior Court. This Court affirmed the Superior Court’s judgment, but remanded the matter to the Superior Court for the purpose of clarifying whether Whalen’s probationary sentences would be served consecutively or concurrently with the probationary portion of his prior sentence.[4] Whalen subsequently filed an appeal from the Superior Court’s modified sentencing order, which was dismissed as untimely by this Court.[5] In August 2000, Whalen again moved for reduction of his sentence. This Court affirmed the Superior Court’s denial of Whalen’s repetitive motion.[6]
(4) In this appeal, Whalen claims that: a) the Superior Court lacked jurisdiction over the lesser-included charges against him; b) the charges were time-barred; c) the charges violated double jeopardy; d) his classification as a Tier III sex offender was improper; e) each charge should have been brought separately; f) his plea was involuntary; g) the conditions of his probation were improper; h) the sentence imposed exceeded the TIS guidelines; and i) his counsel provided ineffective assistance. To the extent that Whalen has not argued other grounds to support his appeal that were raised previously, those grounds are deemed waived and will not be considered by this Court.[7]
(5) Whalen’s claim that the Superior Court lacked jurisdiction over the charges against him is without merit. The Superior Court’s jurisdiction over the lesser-included misdemeanor charges of third degree sexual misconduct derived from its jurisdiction over the original felony charge of continuous sexual abuse of a child.[8] Furthermore, to the extent Whalen argues that the Superior Court lacked jurisdiction over the lesser-included misdemeanor charges because he was not timely indicted on those charges, that claim is also without merit, since the period of limitation had not run on those charges.[9]
(6) All of Whalen’s claims regarding his sentences are procedurally barred. Whalen previously raised claims that his classification as a Tier III sex offender was improper, that the conditions of his probation were improper and that the Superior Court exceeded the TIS guidelines in sentencing him in his two unsuccessful Rule 35(b) motions. He is, thus, barred from presenting those repetitive claims in this appeal.[10]
(7) Whalen’s claim that his plea was involuntary is not supported by the record. The plea agreement, the guilty plea form and the transcript of the plea colloquy all clearly reflect that Whalen understood the nature of the plea and its consequences, was satisfied with the representation provided by his counsel and, therefore, knowingly and voluntarily entered the plea. Absent clear and convincing evidence to the contrary, Whalen is bound by the representations he made at the time the plea was entered.[11]
(8) Whalen’s claims that the lesser-included charges to which he entered a plea of nolo contendere violated double jeopardy and should have been brought separately involve alleged errors or defects occurring prior to the entry of the plea. Because Whalen’s plea was knowingly and voluntarily entered, he has waived any right to pursue these claims in this appeal.[12]
(9) Whalen’s final claim is that his counsel provided ineffective assistance at the time his plea was entered. In order to prevail on that claim, Whalen must show that his counsel’s representation fell below an objective standard of reasonableness and that, but for his counsel’s professional errors, he would not have pleaded guilty but would have insisted on proceeding to trial.[13] The record in this case provides no such evidence.
(10) It is manifest on the face of Whalen’s opening brief that this appeal is without merit because the issues presented on appeal are controlled by settled Delaware law and, to the extent that judicial discretion is implicated, clearly there was no abuse of discretion.
NOW, THEREFORE, IT IS ORDERED that, pursuant to Supreme Court Rule 25(a), the State of Delaware’s motion to affirm is GRANTED. The judgment of the Superior Court is AFFIRMED.