Franklin v. State ( 2017 )

IN THE SUPREME COURT OF THE STATE OF DELAWARE
MARK D. FRANKLIN, §
§ No. 77, 2017
Defendant Below, §
Appellant, § Court Below—Superior Court
§ of the State of Delaware
v. §
§ Cr. ID No. 0108020942 (K)
STATE OF DELAWARE, §
§
Plaintiff Below, §
Appellee. §
Submitted: April 3, 2017
Decided: June 22, 2017
Before STRINE, Chief Justice; VALIHURA and SEITZ, Justices.
ORDER
This 22nd day of June 2017, upon consideration of the appellant’s opening
brief, the State’s motion to affirm, and the record below, it appears to the Court that:
(1) The appellant, Mark D. Franklin, filed this appeal from his conviction
and sentencing in the Superior Court on January 27, 2017, after an uncontested
hearing on his fourth violation of probation (“VOP”). The State has moved to affirm
the Superior Court’s judgment on the ground that it is manifest on the face of
Franklin’s opening brief that the appeal is without merit. We agree and affirm.
(2) In December 2004, Franklin agreed to plead guilty to three counts of
Rape in the Third Degree. On March 1, 2005, the Superior Court sentenced Franklin,
effective August 28, 2001, to a total of thirty years at Level V suspended after fifteen
years for Level III probation.1 As part of the sentence, Franklin was ordered to have
no contact with any minor under the age of eighteen.2
(3) Franklin was found guilty of VOP three times between late April 2015
and early January 2017. In two of the three VOPs, Franklin was found to have had
contact with minors under the age of eighteen in violation of his sentence and the
conditions of his probation. On the third VOP, Franklin was sentenced, on January
13, 2017, to a total of fifteen years at Level V immediately suspended for Level III
probation.
(4) On January 17, 2017, just four days after Franklin was sentenced for
his third VOP, probation officials charged Franklin with his fourth VOP after they
found him in the presence of a child at his home. At a hearing held on January 27,
2017, Franklin’s defense counsel advised the Superior Court that Franklin admitted
the VOP. Also, defense counsel informed the court that the parties had agreed on a
recommended sentence—fifteen years at Level V suspended after one year for Level
III probation. Without further ado, the Superior Court adjudged Franklin guilty of
the VOP and imposed the sentence recommended by the parties. This appeal
followed.
1
Franklin’s 2004 guilty plea was the second time he faced the charges in this case. Previously, in
2002, a Superior Court jury found Franklin guilty of three counts of rape in the second degree. On
appeal, however, the convictions were reversed, and the case was remanded for further
proceedings. Franklin v. State, 855 A.2d 274, 279 (Del. 2004).
2
Franklin’s victims were two minors, ages six and seven.
2
(5) On appeal, Franklin claims that he was denied the right to address the
Superior Court and to present witnesses at the January 27 hearing. Franklin’s claims
are not supported by the record. The hearing transcript reflects that defense counsel
consulted with Franklin before advising the court that “Mr. Franklin admits the
violation. We have an agreed upon [sentence] recommendation.”3 At no time did
Franklin ask to address the court or to present witnesses on his behalf.
(6) Having reviewed the record and the parties’ positions on appeal, the
Court concludes that the Superior Court was entitled to rely on defense counsel’s
representation that Franklin admitted the VOP.4 To the extent Franklin contends
that his defense counsel was ineffective, the Court will not consider a claim of
ineffective assistance of counsel for the first time on appeal.5
NOW, THEREFORE, IT IS ORDERED that the motion to affirm is
GRANTED. The judgment of the Superior Court is AFFIRMED.
BY THE COURT:
/s/ Leo E. Strine, Jr.
Chief Justice
3
Hr’g Tr. at 2 (Jan. 27, 2017).
4
Cf. Hill v. State, 316 A.2d 557, 558 (Del. 1974) (“Beyond doubt the Court should have relied
upon [defense counsel’s] representation [to the Court] and it did so.”)
5
Foster v. State, 2009 WL 1456992 (Del. May 26, 2009) (citing Desmond v. State, 654 A.2d 821,
829 (Del. 1994)).
3