IN THE SUPREME COURT OF THE STATE OF DELAWARE

MARK A. PHILLIPS, § § No. 424, 2015 Defendant Below, § Appellant, § Court Below: Superior Court § of the State of Delaware v. § § Cr. ID No. 1211014542 STATE OF DELAWARE, § § Plaintiff Below, § Appellee. § Submitted: April 21, 2016 Decided: June 20, 2016

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

ORDER

This 20 th day of June 2016, upon careful consideration of th e appellant’s brief under Supreme Court Rule 26(c), his attorney’ s motion to withdraw, and the State’s response, it appears to the Court that: (1) The appellant, Mark A. Phillips, filed this ap peal from the Superior Court’s denial of his motion for postconviction rel ief. Phillips’ Postconviction

Counsel has filed a no-merit brief and a motion to withdraw under Supreme Court Rule 26(c). Postconviction Counsel asserts that, b ased upon a complete and careful examination of the record, there are no arg uably appealable issues. Postconviction Counsel states that he provided Phil lips with a copy of the motion to withdraw, the brief in draft form, and a letter explaining that Phillips had a right2

to send him written points that would be included i n the brief filed with the Court. Postconviction Counsel also represents that Phillip s did not respond to the letter and did not submit written points for the Court’s c onsideration. The State has responded to the position taken by Postconviction C ounsel and has moved to affirm the Superior Court’s judgment. We find no m erit to Phillips’ appeal. Accordingly, we affirm. (2) The record reflects that Phillips was indicted in January 2013 on charges of Attempted Murder in the First Degree, Ro bbery in the First Degree, Conspiracy in the Second Degree, Possession of a De adly Weapon by a Person Prohibited (“PDWBPP”), and two counts of Possession of a Firearm during the Commission of a Felony (“PFDCF”). On April 9, 2013 , with the assistance of his trial counsel, Phillips pled guilty to Assault in t he First Degree, as a lesser included offense of attempted murder, PDWBPP, and one count of PFDCF. On June 28, 2013, after a presentence investigation, the Superi or Court sentenced Phillips to a total of forty-three years at Level V suspended aft er twenty years for one year at Level IV work release followed by probation. Phill ips did not appeal his

conviction or sentence. (3) On June 25, 2014, Phillips filed a pro se motion for postconviction relief under Superior Court Criminal Rule 61. Phil lips claimed that his trial counsel “misrepresented the plea” and that, but for trial counsel’s actions, Phillips3

would have received a plea bargain for seven years and “would not have received the far more harsh plea for twenty years.” (4) The Superior Court appointed counsel to repres ent Phillips and directed Postconviction Counsel to file any necessa ry amendments to Phillips’ pro

se motion for postconviction relief. Postconviction Counsel informed the court that amendments to the motion were not necessary. Thereafter, as directed by the court, Phillips’ trial counsel filed an affidavit i n response to the allegations of

ineffective assistance of counsel and the State fil ed a response to the motion. (5) By order dated July 23, 2015, the Superior Cou rt denied the motion for postconviction relief as without merit. This a ppeal followed. (6) When reviewing a motion to withdraw and an acc ompanying brief under Rule 26(c), the Court must be satisfied that the appellant’s counsel has made

a conscientious examination of the record and the l aw for arguable claims. 1 Also,

the Court must conduct its own review of the record and determine whether “the appeal is indeed so frivolous that it may be decide d without an adversary presentation.” 2 (7) In this case, after careful consideration of t he record, and in the absence of any claims of error, we conclude that th e Superior Court’s denial of

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). 2 Penson v. Ohio , 488 U.S. at 81.4

Phillips’ motion for postconviction relief should b e affirmed. Phillips’ claim of ineffective counsel is belied by the record. Phill ips was offered a guilty plea to three charges with a sentencing range of five to fi fty-eight years. Phillips knew that he faced a maximum sentence of fifty-eight yea rs and understood that the sentence he received would be determined by the cou rt. In the truth-in-sentencing guilty plea form and during the plea colloquy, Phil lips indicated that he was satisfied with his trial counsel’s representation. (8) Phillips’ appeal is wholly without merit and d evoid of any arguably appealable issue. We are satisfied that Postconvic tion Counsel made a review of the record and the law and properly determined that Phillips could not raise a meritorious claim in this appeal. NOW, THEREFORE, IT IS ORDERED that the motion to a ffirm is GRANTED. The judgment of the Superior Court is AFF IRMED. The motion to

withdraw is moot.

BY THE COURT:

/s/ Collins J. Seitz, Jr. Justice