Smith v. State ( 2018 )

IN THE SUPREME COURT OF THE STATE OF DELAWARE
EVERETT E. SMITH, §
§
Defendant Below- § No. 202, 2018
Appellant, §
§
v. § Court Below—Superior Court
§ of the State of Delaware
STATE OF DELAWARE, §
§ Cr. ID No. 1211004907(N)
Plaintiff Below- §
Appellee. §
Submitted: October 5, 2018
Decided: November 20, 2018
Before VAUGHN, SEITZ, and TRAYNOR, Justices.
ORDER
Upon consideration of the parties’ briefs and the record on appeal, it
appears to the Court that:
(1) The appellant, Everett Smith, filed this appeal from the Superior
Court’s order dated March 28, 2018, denying his refiled first motion for
postconviction relief under Superior Court Criminal Rule 61. We find no
merit to Smith’s appeal. Accordingly, we affirm the Superior Court’s
judgment.
(2) Smith was indicted in December 2012 on criminal charges
arising from the robbery of a pizza restaurant. In March 2013, before his
scheduled trial, the Superior Court granted defense counsel’s request to have
Smith evaluated to determine his competency to stand trial. Upon receipt of
the report, which was then sealed by court order, a Superior Court
Commissioner provided the parties with the report and gave them ten days to
file a motion for a competency hearing, if a hearing was deemed to be
necessary. No motion was filed. Thereafter, a Superior Court jury convicted
Smith in September 2013 of Attempted Robbery in the Second Degree and
Criminal Mischief. The Superior Court ordered a presentence investigation.
(3) Before sentencing, Smith’s counsel requested an updated
psycho-forensic evaluation to determine Smith’s competency to be sentenced.
After receiving the report, which could offer no opinion because of Smith’s
refusal to participate in the evaluation, the Superior Court sentenced Smith as
a habitual offender to a total period of seven years and thirty days at Level V
incarceration to be suspended after serving seven years in prison for a period
of probation. In sentencing Smith, the Superior Court specifically considered
Smith’s significant mental health issues to be a mitigating factor and noted
that it was factoring Smith’s mental health needs into the structure of the
sentence. This Court affirmed Smith’s convictions and sentence on direct
appeal.1
1
Smith v. State, 2015 WL 504817 (Del. Feb. 4, 2015).
2
(4) Smith filed a timely first motion for postconviction relief under
Superior Court Criminal Rule 61 in July 2015. Thereafter, he filed a request
for counsel and an amended Rule 61 motion. The Superior Court appointed
counsel to represent Smith. On February 3, 2017, Smith’s appointed counsel
filed a motion to withdraw from further representation under Rule 61(e)(7),
finding no ground for relief that counsel could advocate ethically on Smith’s
behalf. On February 13, 2017, Smith filed a response in opposition to
appointed counsel’s contention that Smith’s case presented no grounds for
relief.
(5) On March 13, 2017, Smith filed a “Motion to Restructure.” In
the first sentence of his motion, Smith stated that wanted to withdraw his Rule
61 motion. He requested instead that the Superior Court restructure his
sentence to release him from Level V upon completion of his minimum
mandatory five-year term and allow him to receive twenty-two months of
mental health treatment either within the prison or at the Delaware Psychiatric
Center (“DPC”).
(6) On March 30, 2017, the Superior Court, in a letter order,
acknowledged Smith’s withdrawal of his Rule 61 motion and, thus, granted
his appointed counsel’s motion to withdraw. But, the Superior Court denied
Smith’s motion to restructure his sentence because his request to be relocated
3
internally within the Department of Correction’s facilities was not within the
Superior Court’s discretion to order and because Smith’s alternative request
to be transferred to DPC was not supported by any information from the
Department of Health and Social Services as required by 11 Del. C. § 406.
We affirmed that decision on appeal.2
(7) Thereafter, Smith refiled his “first” postconviction motion.
Notwithstanding the withdrawal of Smith’s actual first postconviction motion
in March 2017, the Superior Court considered his refiled motion as a timely,
first postconviction motion and considered the merits of Smith’s claims. In
his motion, Smith argued that his trial counsel was ineffective because
counsel: (i) failed to file a motion to have the court open the results of DPC’s
pre-trial competency evaluation; (ii) failed to file to a motion to have the court
open the results of DPC’s pre-sentencing competency evaluation; and (iii)
failed to file a pretrial motion for a competency hearing. The Superior Court
rejected all three claims on the merits.
(8) In his opening brief on appeal, Smith’s sole argument is that the
Superior Court erred in denying his motion for postconviction relief because
his trial counsel was ineffective for failing to seek an independent
psychological examination before sentencing, thus presenting mitigating
2
Smith v. State, 2017 WL 4786753 (Del. Oct. 23, 2017).
4
evidence that would have resulted in a different sentence. This issue,
however, was not fairly presented to the Superior Court in his refiled
postconviction motion.3 In the absence of plain error, this Court will not
consider any issue on appeal that was not fairly raised and considered by the
trial court.4 Plain error exists when the error complained of is apparent on the
face of the record and is so prejudicial to a defendant’s substantial rights as to
jeopardize the integrity and fairness of the proceeding.5 The burden of
persuasion is on the defendant to show prejudice.6
(9) We find no plain error in this case. The record reflects that
defense counsel sought an updated psycho-forensic examination of Smith
before sentencing to determine his competency to be sentenced. DPC
professionals could not issue an opinion on Smith’s competency to be
sentenced, however, because Smith refused to participate in the examination.
Thus, we conclude that counsel committed no error in failing to request
another mental health examination. Moreover, the Superior Court had the
presentence investigation report and DPC’s April 2013 pretrial evaluation of
Smith to review before sentencing. The Superior Court considered Smith’s
3
See Del. Supr. Ct. R. 8 (providing that the Court will only consider on appeal those issues
that were fairly presented to the trial court, unless the interests of justice require otherwise).
4
Russell v. State, 5 A.3d 622, 627 (Del. 2010).
5
Wainwright v. State, 504 A.2d 1096, 1100 (Del. 1986).
6
Brown v. State, 897 A.2d 748, 753 (Del. 2006).
5
significant mental health issues and his history of trauma as mitigating factors
at sentencing. Under these circumstances, Smith cannot establish that an
additional mental health examination would have resulted in a different
outcome.
NOW, THEREFORE, IT IS ORDERED that the judgment of the
Superior Court is AFFIRMED.
BY THE COURT:
/s/ Collins J. Seitz, Jr.
Justice
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