IN THE SUPREME COURT OF THE STATE OF DELAWARE

WARREN KINZER,

Defendant BelowAppellant,

v.

STATE OF DELAWARE,

Plaintiff BelowAppellee.

§

§ No. 713, 2014

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§

§

§ Court Below—Superior Court

§ of the State of Delaware,

§ in and for Sussex County

§ Cr. ID 1304021423

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Submitted: April 29, 2015

 Decided: June 29, 2015

Before STRINE, Chief Justice; HOLLAND, and VAUGHN, Justices.

O R D E R

This 29th day of June 2015, upon consideration of the appellant’s opening 

brief, the State’s motion to affirm, and the record on appeal, it appears to the Court 

that:

(1) The appellant, Warren Kinzer, filed this appeal from the Superior 

Court’s denial of his first motion for postconviction relief. The State has filed a 

motion to affirm the Superior Court’s judgment on the ground that it is manifest on 

the face of Kinzer’s opening brief that his appeal is without. We agree and affirm.

(2) The record reflects that Kinzer pled guilty on November 8, 2013 to 

one count each of continuous sexual abuse of a child and second degree sexual 

abuse of a child by a person in a position of trust. The victim was Kinzer’s 
2

granddaughter. After a presentence investigation, the Superior Court sentenced 

Kinzer to a total period of twenty-eight years at Level V incarceration, to be 

suspended after serving twelve years in prison and successful completion of the 

Transitions Sex Offender Program for decreasing levels of supervision. Kinzer did 

not file a direct appeal. Instead, on August 13, 2014, Kinzer filed a motion for 

postconviction relief, which the Superior Court denied on December 2, 2014. This 

appeal followed.

(3) In his opening brief on appeal, Kinzer asserts that his guilty plea was 

not knowing and voluntary because of the ineffective assistance of his trial 

counsel. Kinzer contends that his trial counsel was ineffective for failing to 

investigate mitigating evidence, for failing to provide him with a copy of the 

presentence investigation report (“PSI”), and for failing to inform him of his right 

to appeal.

1

 Kinzer’s contentions that his trial counsel was ineffective for failing to 

provide him with a copy of the PSI and for failing to inform him of his right to 

appeal were not raised in the motion he filed in the Superior Court. Absent plain 

error, which we do not find, we will not consider these claims for the first time on 

appeal.2

 

1

To the extent Kinzer raised other issues in the motion he filed in the Superior Court, he has 

waived his right to review of those claims by failing to argue those issues in his opening brief on 

appeal. See Murphy v. State, 632 A.2d 1150, 1152 (Del. 1993).

2 Del. Supr. Ct. R. 8.
3

(4) The only issue properly before the Court is Kinzer’s claim that his 

trial counsel was ineffective for failing to investigate mitigating evidence. Kinzer 

contends that, if his trial counsel had come to see him promptly after his arrest, he 

would have seen evidence of bruising that the victim allegedly inflicted upon him. 

Kinzer also asserts that his counsel failed to interview a guidance counselor and the 

vice principal of the victim’s school, who would have told counsel that Kinzer 

“had a few problems” with his granddaughter. Finally, Kinzer contends that 

counsel failed to look at the victim’s cell phone, which would have shown how the 

victim treated Kinzer.

(5) To support a claim of ineffective assistance of counsel following the 

entry of a guilty plea, a defendant must demonstrate that: (a) counsel’s conduct fell 

below an objective standard of reasonableness; and (b) there is a reasonable 

probability that, but for counsel’s errors, the defendant would not have pled guilty 

but would have insisted on going to trial.3 A defendant must make concrete 

allegations of causation and actual prejudice to substantiate a claim of ineffective 

assistance of counsel.4 The Superior Court concluded that Kinzer’s allegations 

about his attorney’s failure to discover purported mitigating evidence were vague 

 

3 Hill v. Lockhart, 474 U.S. 52, 58 (1985).

4

Younger v. State, 580 A.2d 552, 556 (Del. 1980).
4

and conclusory and failed to establish a reasonable probability that Kinzer would 

not have pled guilty.

(6) After careful consideration of the parties’ positions, we find no merit 

to Kinzer’s appeal. We agree with the Superior Court’s conclusion that Kinzer’s 

claim about his attorney’s failure to present available mitigating evidence is vague 

and conclusory and fails to establish how the salleged evidence would have 

changed the outcome of the proceeding. Moreover, Kinzer stated under oath at his 

plea colloquy that he was satisfied with his counsel’s representation. He indicated 

that he fully understood the charges against him and that he understood the 

consequences of pleading guilty. He stated that he was pleading guilty because he 

was, in fact, guilty of the charged offenses. He also stated, among other things, 

that no one had threatened him or coerced him into pleading guilty. In the absence 

of clear and convincing evidence to the contrary, Kinzer is bound by these 

statements.5 We thus reject Kinzer’s claim that his guilty plea was involuntary due 

to his counsel’s ineffectiveness. 

 

5

Somerville v. State, 703 A.2d 629, 632 (Del. 1997).
5

NOW, THEREFORE, IT IS ORDERED that the judgment of the Superior 

Court is AFFIRMED.

BY THE COURT:

/s/ Leo E. Strine, Jr.

Chief Justice