Dawud v. State of Delaware ( 2020 )

IN THE SUPREME COURT OF THE STATE OF DELAWARE
MUSA DAWUD, §
§ No. 396, 2019
Defendant Below, §
Appellant, § Court Below—Superior Court
§ of the State of Delaware
v. §
§ Cr. ID No. 1902011721 (N)
STATE OF DELAWARE, §
§
Plaintiff Below, §
Appellee. §
Submitted: December 27, 2019
Decided: February 26, 2020
Before SEITZ, Chief Justice; VAUGHN, and TRAYNOR, Justices.
ORDER
After consideration of the appellant’s brief filed under Supreme Court Rule
26(c), his attorney’s motion to withdraw, and the State’s response, the Court
concludes that:
(1) In April 2019, a grand jury indicted the appellant, Musa Dawud, on
multiple weapon charges. On August 19, 2019, Dawud pled guilty to possession of
a firearm by a person prohibited (“PFBPP”) in exchange for dismissal of the other
charges. The Superior Court immediately sentenced Dawud to fifteen years of Level
V incarceration, with credit for 157 days previously served, suspended after the
minimum mandatory five years,1 followed by two years of Level III probation. This
appeal followed.
(2) On appeal, Dawud’s counsel (“Counsel”) filed a brief and a motion to
withdraw under Supreme Court Rule 26(c). Counsel asserts that, based upon a
complete and careful examination of the record, there are no arguably appealable
issues. Counsel informed Dawud of the provisions of Rule 26(c) and provided
Dawud with a copy of the motion to withdraw and the accompanying brief.
(3) Counsel also informed Dawud of his right to identify any points he
wished this Court to consider on appeal. Dawud has submitted points for this Court’s
consideration. The State has responded to Dawud’s arguments and has moved to
affirm the Superior Court’s judgment.
(4) When reviewing a motion to withdraw and an accompanying brief
under Rule 26(c), this Court must: (i) be satisfied that defense counsel has made a
conscientious examination of the record and the law for arguable claims; and (ii)
conduct its own review of the record and determine whether the appeal is so totally
1
Dawud was subject to a five-year minimum mandatory sentence because he had a previous
violent felony conviction (carrying a concealed deadly weapon (firearm)) in the last ten years. 11
Del. C. § 1448(e)(1)(b) (stating that person convicted of PFBB shall receive a minimum sentence
of five years at Level V if they have been convicted within last ten years of a violent felony); 11
Del. C. § 4201(c) (defining carrying a concealed deadly weapon (firearm) as a violent felony).
2
devoid of at least arguably appealable issues that it can be decided without an
adversary presentation.2
(5) Dawud’s arguments on appeal may be summarized as follows: (i) his
guilty plea was not knowing or intelligent; (ii) there was insufficient evidence to
support the charges; (iii) the preliminary hearing and indictment were untimely; (iv)
the person who contacted the police about the gun she found in Dawud’s bedroom
closet was untruthful and unreliable; (v) there was no victim; (vi) he did not receive
his Miranda rights when he was arrested; (vi) his bail was set too high; (vii) the
attorney who replaced his first attorney was unsatisfactory; (viii) he did not receive
credit for time he served at the juvenile holding facility; and (ix) the Supreme Court
Clerk’s Office should not have sent one of his letters to Counsel. After careful
consideration of the remaining claims, we find no merit to Dawud’s appeal.
(6) With the exception of the claim regarding the performance regarding
his attorney, which we decline to consider for the first time on direct appeal,3 the
credit time claim, and the complaint concerning the Clerk’s Office, the disposition
of Dawud’s remaining claims depends on whether Dawud entered his guilty plea
knowingly, intelligently, and voluntarily. A knowing, intelligent, and voluntary
2
Penson v. Ohio, 488 U.S. 75, 83 (1988); Leacock v. State, 690 A.2d 926, 927-28 (Del. 1996).
3
Desmond v. State, 654 A.2d 821, 829 (Del. 1994) (“This Court has consistently held it will not
consider a claim of ineffective assistance of counsel on direct appeal if that issue has not been
decided on the merits in the trial court.”).
3
guilty waives a defendant’s right to challenge any errors occurring before the entry
of the plea.4
(7) The record reflects that Dawud’s plea was knowing, intelligent, and
voluntary. In the Truth-in-Sentencing Guilty Plea form, Dawud indicated that he
understood he was waiving certain constitutional rights, including his right to a jury
trial and to present evidence in his defense. During his plea colloquy with the
Superior Court judge, Dawud affirmed that he had reviewed the guilty plea form
with Counsel, no one forced him to plead guilty, he understood that he was giving
up certain constitutional rights, including the right question to witnesses and to make
the State prove every part of the charge beyond a reasonable doubt, and he faced a
sentence of up to fifteen years, which included a five-year minimum mandatory
sentence that could not be suspended. He also affirmed that he committed the
offense of knowingly purchasing, owning, possessing, or controlling a firearm after
having been convicted of carrying a concealed deadly weapon, a felony, in 2017.
(8) Contrary to Dawud’s contention, a defendant without a law degree may
enter a knowing and intelligent guilty plea. Dawud’s responses to the Superior Court
judge’s questions reflect that he understood what he was doing. Absent clear and
convincing evidence to the contrary, which he has not identified, Dawud is bound
4
Miller v. State, 840 A.2d 1229, 1232 (Del. 2003); Downer v. State, 543 A.2d 309, 312–13 (Del.
1988).
4
by his representations during the plea colloquy and in the Truth-in-Sentencing Guilty
Plea Form.5 As a result of his knowing, intelligent, and voluntary guilty plea, Dawud
has waived his claims concerning the sufficiency of the evidence, the timing of the
preliminary hearing and indictment, the credibility of the person who reported him
to the police, the lack of a victim, the amount of bail, and his Miranda rights.6
(9) Dawud argues that he is entitled to credit for time he spent in a juvenile
detention center before he was transferred to Howard R. Young Correctional Center.
Dawud does not provide any support for this contention and we are unable to
determine from the record whether the 157 days of credit he received for time he
served before his sentencing includes time he spent in the juvenile detention center.
We agree with the State’s suggestion that Dawud should file a motion in the Superior
Court so that the Superior Court can determine in the first instance whether Dawud
is entitled to additional credit for time he spent in a juvenile detention facility.
(10) Finally, Dawud contends that the Clerk’s Office should not have
forwarded a letter he sent to the Court to Counsel. When a party is represented by
an attorney as Dawud was here, communications with the Court must go through the
attorney. The Clerk’s Office appropriately forwards correspondence from
represented parties like Dawud to their counsel to handle as they deem appropriate.
5
Somerville v. State, 703 A.2d 629, 632 (Del. 1997).
6
See supra n.4.
5
(11) Having carefully reviewed the record, we conclude that Dawud’s
appeal is wholly without merit and devoid of any arguably appealable issue. We
also are satisfied that Counsel has made a conscientious effort to examine the record
and the law and has properly determined that Dawud could not raise a meritorious
claim in this appeal.
NOW, THEREFORE, IT IS ORDERED that the judgment of the Superior
Court is AFFIRMED. The motion to withdraw is moot.
BY THE COURT:
/s/ Collins J. Seitz, Jr.
Chief Justice
6