Guess v. State ( 2014 )

IN THE SUPREME COURT OF THE STATE OF DELAWARE
MARK GUESS, §
§ No. 429, 2014
Defendant Below- §
Appellant, §
§
v. § Court Below—Superior Court
§ of the State of Delaware,
STATE OF DELAWARE, § in and for New Castle County
§ Cr. ID 1111020337
Plaintiff Below- §
Appellee. §
Submitted: October 20, 2014
Decided: December 4 2014
Before STRINE, Chief Justice, RIDGELY, and VALIHURA, Justices.
ORDER
This 4th day of December 2014, upon consideration of the appellant's
Supreme Court Rule 26(c) brief, his attorney's motion to withdraw, and the
State's response thereto, it appears to the Court that:
(1) The defendant-appellant, Mark Guess, filed this appeal from the
Superior Court’s denial of his first motion for postconviction relief. Guess’s
counsel on appeal has filed a no-merit brief and a motion to withdraw under
Rule 26(c). Counsel asserts that, based upon a complete and careful
examination of the record, there is no merit to the appeal. Despite the
opportunity to do so, Guess did not raise any points for this Court’s
consideration on appeal. The State has filed a response and moves to affirm
the Superior Court’s judgment. We find no merit to Guess’s appeal.
Accordingly, we affirm.
(2) The record reflects that Guess was indicted in 2012 on multiple
counts of burglary and theft, among other charges, arising from a string of
burglaries. Guess’s trial counsel filed a motion to suppress evidence that
had been obtained through the use of a GPS tracking device. On February 1,
2013, the Superior Court held a hearing on the suppression motion. During
the course of the hearing, an issue was raised about whether the police had
complied with the terms of the GPS warrant that had been issued by a
Pennsylvania court. The Superior Court denied the motion to suppress but
directed the State to supply supplemental information about the issue raised.
(3) After the State supplied the requested information, defense
counsel contacted the prosecutor and indicated that Guess was prepared to
plead guilty if the State, among other things, would return a vehicle seized
during Guess’s arrest to its rightful owner. Defense counsel indicated that if
the parties could not agree, then Guess would renew his motion to suppress
in light of the State’s supplemental response. Trial was scheduled to begin
on March 26, 2013. On March 21, 2013, Guess pled guilty to one count
each of Burglary in the Second Degree and Theft Over $1500. In exchange
for his plea, the State dismissed the remaining charges and agreed not to
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seek habitual offender sentencing. The State also agreed to return the seized
vehicle to its owner. The Superior Court accepted the plea and immediately
sentenced Guess to a total period of ten years at Level V incarceration to be
suspended after serving eight years in prison for a period of probation.
Guess did not appeal.
(4) In June 2013, Guess filed a motion for reduction of sentence,
which the Superior Court denied. Again, Guess did not appeal. In
September 2013, he filed his first motion for postconviction relief. He
alleged that his trial counsel was ineffective for failing to renew the motion
to suppress. He also alleged that his Fourth Amendment rights were violated
because the Pennsylvania warrant should only have been deemed valid for
30 days and because the police engaged in a warrantless search by
monitoring a GPS device without a Delaware warrant. The Superior Court
appointed counsel to represent Guess. Counsel filed an amended motion.
The Superior Court denied postconviction relief on the ground that trial
counsel’s failure to renew the suppression motion was objectively
reasonable under the circumstances because counsel had been actively
negotiating a very favorable plea on behalf of his client. This appeal
followed.
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(5) Guess’s appointed counsel on appeal has filed a brief and a
motion to withdraw pursuant to Rule 26(c). Guess’s counsel asserts that
there are no meritorious issues he could argue on appeal challenging the
Superior Court’s denial of postconviction relief. Guess was informed of his
right to supplement his attorney's presentation. He did not raise any issues
for the Court’s consideration.
(6) 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) this Court must be satisfied that defense counsel
has made a conscientious examination of the record and the law for arguable
claims; and (b) this Court must conduct its own review of the record and
determine whether the appeal is so totally devoid of at least arguably
appealable issues that it can be decided without an adversary presentation. 1
(7) This Court has reviewed the record carefully and has concluded
that Guess’s appeal is wholly without merit and devoid of any arguably
appealable issue. We also are satisfied that Guess’s counsel has made a
conscientious effort to examine the record and the law and has properly
determined that Guess could not raise a meritorious claim in this appeal.
1
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).
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The Superior Court did not err in denying Guess’s motion for postconviction
relief.
NOW, THEREFORE, IT IS ORDERED that the judgment of the
Superior Court is AFFIRMED. The motion to withdraw is moot.
BY THE COURT:
/s/ Karen L. Valihura
Justice
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