IN THE SUPREME COURT OF THE STATE OF DELAWARE 

EDWIN SCARBOROUGH, 

Defendant BelowAppellant, 

v. 

STATE OF DELAWARE, 

Plaintiff BelowAppellee. 

§ 

§ No. 38, 2014 

§ 

§ 

§ 

§ Court Below—Superior Court 

§ of the State of Delaware, 

§ in and for Kent County 

§ Cr. ID 1204019450 

§ 

§ 

 Submitted: June 7, 2015 

 Decided: July 30, 2015 

Before HOLLAND, VALIHURA, and SEITZ, Justices. 

O R D E R

 This 30th day of July 2015, upon consideration of the appellant’s brief 

filed under Supreme Court Rule 26(c), his attorney’s motion to withdraw, 

and the State’s response thereto, it appears to the Court that: 

 (1) On January 6, 2014, after the Superior Court denied defense 

counsel’s motion to suppress, the defendant-appellant, Edwin Scarborough, 

pled guilty to one count of Drug Dealing. The Superior Court immediately 

sentenced Scarborough, effective September 20, 2012, to a total period of 

fifteen years at Level V incarceration, with credit for eleven days served, to 

be suspended after serving three years in prison for eight months at Level IV 
2 

and eighteen months at Level III probation. This is Scarborough’s direct 

appeal. 

 (2) Scarborough’s counsel filed a brief and a motion to withdraw 

under Supreme Court Rule 26(c). Counsel asserted that, based upon a 

complete and careful examination of the record, there are no arguably 

appealable issues. By letter, counsel informed Scarborough of the 

provisions of Rule 26(c) and gave him a copy of the motion to withdraw and 

the accompanying brief and appendix. Scarborough also was informed of 

his right to supplement counsel’s presentation. Scarborough has raised eight 

overlapping issues for inclusion in the Rule 26(c) brief. 

 (3) After the State filed its response to the Rule 26(c) brief, the 

Court stayed further consideration of Scarborough’s appeal pending the 

outcome of another case, Brown v. State, No. 178, 2014. The Court issued 

its opinion in Brown on January 23, 2015.1

 The parties were directed to file 

supplemental memoranda addressing the applicability of Brown to 

Scarborough’s case. After considering the parties’ supplemental 

memoranda, the Court again directed the parties to file additional 

supplemental memoranda related to Scarborough’s contention that, although 

 

1 Brown v. State, 108 A.3d 1201 (Del. 2015). 
3 

his guilty plea was valid, he had not waived his right to appeal the Superior 

Court’s denial of his suppression motion. 

 (4) The Superior Court record reflects that Scarborough was 

indicted in this case in July 2012 on charges of Drug Dealing, Endangering 

the Welfare of a Child, and Possession of Drug Paraphernalia. Defense 

counsel filed eight pre-trial motions including a motion to suppress drug 

evidence. A suppression hearing was held on September 4, 2013. The 

Superior Court denied Scarborough’s suppression motion, and trial was 

scheduled for January 6, 2014. 

 (5) On the day of trial, at defense counsel’s request, the Superior 

Court engaged in a colloquy with Scarborough about a plea offer made by 

the State to resolve Scarborough’s current charges in Cr. ID 1204019450, as 

well as another set of criminal charges pending against him in Cr. ID 

1208002007. Scarborough told the Superior Court that he was interested in 

resolving both cases but that he did not want to accept the State’s offer 

because he was not happy with the length of the State’s recommended total 

sentence of eight years (even though he was facing the possibility of a life 

sentence because of his prior criminal record). The judge informed 

Scarborough that he could resolve just his current case by a plea, rather than 

both cases together, or he could choose to go to trial on his current charges if 
4 

he believed that “the suppression decision is bad.”2 The Superior Court 

recessed to allow Scarborough to consult with his counsel and to reconsider 

the State’s plea offer in light of the judge’s colloquy. 

 (6) Upon returning from the recess, defense counsel informed the 

judge that he had discussed the State’s plea offer with Scarborough, that 

Scarborough understood all the constitutional rights that he was waiving by 

pleading guilty, and that he knowingly and voluntarily decided to enter a 

guilty plea. The judge then engaged in a second colloquy with Scarborough 

in open court. Scarborough informed the judge that he understood the 

charges against him and that he was pleading guilty to Drug Dealing because 

he was, in fact, guilty of that offense. Scarborough stated that he had 

reviewed the guilty plea agreement and that he understood its meaning. 

Scarborough also told the judge that no one was forcing him to plead guilty, 

that he was not under the influence of any medications, that he had not been 

under the care of a psychologist in the last two years, and that he was 

satisfied with his counsel’s representation. 

 (7) Scarborough told the judge that he understood the 

consequences of what he was doing. When asked if he had any questions, 

Scarborough’s only question was whether the judge would allow him to be 

 

2

 Opening Br. App. at A-209. 
5 

held at Level III while awaiting space in a Level IV facility. The Superior 

Court accepted Scarborough’s plea and sentenced him in accordance with 

his plea agreement to fifteen years at Level V incarceration to be suspended 

after serving three years in prison for decreasing levels of supervision. This 

appeal followed. 

 (8) The standard and scope of review applicable to the 

consideration of defense counsel’s motion to withdraw and an 

accompanying brief under Rule 26(c) is twofold: a) the Court must be 

satisfied that defense counsel has made a conscientious examination of the 

record and the law for claims that could arguably support the appeal; and b) 

the Court must conduct its own review of the record in order to determine 

whether the appeal is so totally devoid of at least arguably appealable issues 

that it can be decided without an adversary presentation.3

 

 (9) In response to his counsel’s motion to withdraw, Scarborough 

enumerated eight overlapping issues for the Court’s consideration: (i) the 

Superior Court erred in denying his motion to suppress; (ii) the arresting 

officers violated the “knock and announce” rule; (iii) his arrest was 

pretextual; (iv) his counsel was ineffective for failing to file an interlocutory 

appeal from the denial of the suppression motion; (v) his counsel was 

 

3 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). 
6 

ineffective for failing to interview a defense witness, who turned out to be 

hostile, before the suppression hearing; (vi) his counsel was ineffective 

because he failed to argue that his arrest was pretextual; (vii) he never 

waived his right to appeal the suppression ruling because he did not check 

“yes” or “no” to the question on his guilty plea agreement indicating that he 

understood he was waiving all of his trial and appeal rights by pleading 

guilty; and (viii) the State did not prove the authenticity of the drug lab 

report and that, in light of the recent scandal at the Office of the Chief 

Medical Examiner, there is a “reasonable chance” that the drug evidence in 

his case had been tampered with. 

 (10) With the exception of his ineffective assistance of counsel 

claims, which we decline to consider for the first time in this direct appeal,4

the disposition of Scarborough’s remaining claims hinges on the Court’s 

determination of whether Scarborough entered his guilty plea knowingly, 

intelligently, and voluntarily.5

 It is well-settled that a knowing and 

voluntary guilty plea waives a defendant’s right to challenge any errors 

 

4 Sahin v. State, 7 A.3d 450, 451 (Del. 2010). 

5 Lewis v. State, 2010 WL 2163910, at *1 (Del. May 11, 2010). 
7 

occurring before the entry of the plea, “even those of constitutional 

dimensions.”6

 (11) In the points he filed to be included in his counsel’s Rule 26(c) 

brief, Scarborough states, “[t]he defendant is not challenging the validity of 

the plea because he voluntarily signed it, however he did not knowingly and 

voluntarily waive his rights to appeal and challenge the suppression issues.”7

 

Scarborough points to two alleged errors in the record to support his 

contention that he did not waive his right to appeal. First, he points out that 

he did not check either “Yes” or “No” to the question on the guilty plea 

agreement asking: 

 “Do you understand that because you are pleading guilty you will not 

have a trial, and you therefore waive (give up) your constitutional rights: 

(1) to have a lawyer represent you at trial; (2) to be presumed innocent 

until the State can prove each and every part of the charge(s) against you 

beyond a reasonable doubt; (3) to a speedy and public trial by jury; (4) to 

hear and question the witnesses against you; (5) to present evidence in 

your defense; (6) to testify or not testify yourself; and (7) to appeal, if 

convicted, to the Delaware Supreme Court with assistance of a lawyer?” 

Second, Scarborough asserts that when the judge asked him if he understood 

the rights he was giving up, the judge did not wait for Scarborough to reply.8

 

6 Wilson v. State, 2010 WL 572114, at *2 (Del. Feb. 18, 2010) (quoting Smith v. State, 

2004 WL 120530, at *1 (Del. Jan. 15, 2004)). 

7

 Defendant’s Points at 32. 

8

 The transcript of the guilty plea hearing reflects the following exchange: 
8 

 (12) We find no merit to this argument. Scarborough acknowledges 

in this appeal that he is not challenging the validity of his guilty plea. 

Moreover, it is clear from the entire context of the proceedings below that 

the Superior Court informed Scarborough—and Scarborough understood—

that, if he thought the Superior Court had erred in ruling on his suppression 

motion, then Scarborough’s only option was to go to trial and then appeal. 

 

THE COURT: In my left hand I also have the Truth in Sentencing Guilty 

Plea Form. Did you review the questions and provide the 

information shown? 

THE DEFENDANT: Yes, sir. 

THE COURT: Did you understand the Constitutional Rights and civil 

liberties you would be giving up by entering this plea? 

 Now, the other two misdemeanors – he’s not pleading to 

those, right? 

[COUNSEL]: That’s correct, Your Honor. 

 Are those on the form? 

THE COURT: Yes. That’s okay; I can mark them off. 

 And you face from zero to 15 years? 

THE DEFENDANT: Yes, sir. 

THE COURT: I will just put my initials right here. 

 Is that your signature? 

THE DEFENDANT: Yes, sir. 

THE COURT: Do you have any questions for the Court regarding either 

document or any other aspect in this matter? 

THE DEFENDANT: Yes, one question. 

THE COURT: What’s that? 

THE DEFENDANT: The Level 4 time – I mean, I know it’s – you know, it’s not 

the norm, as Ms. Williams told me; but is there any way I can 

be held at Level 3 before I go to Level 4? I know it might 

now happen, but I just had to ask. 

Appellant’s Opening Brief app. at A218-19. 
9 

In his points, Scarborough also acknowledges his understanding that, if he 

had wished to retain his right to appeal the suppression ruling, he could have 

negotiated an agreement with the State to hold a stipulated trial.9

 

 (13) Scarborough did not have a stipulated trial, however. Instead, 

the record reflects that he knowingly, intelligently, and voluntarily pled 

guilty with a full understanding of the rights he was waiving, including his 

right to appeal the suppression ruling. His failure to check either the “yes” 

or “no” box to the question asking whether he understood the trial rights he 

was waiving was merely an oversight that did not affect Scarborough’s 

substantial rights.10 

 (14) Under the circumstances of this case, we find that 

Scarborough’s knowing, intelligent, and voluntary guilty plea waived his 

right to challenge the suppression ruling and the authenticity of the testing of 

the drug evidence.11 We have reviewed the record carefully and conclude 

that Scarborough’s appeal is wholly without merit and devoid of any 

 

9

 Defendant’s Points at 7. See, e.g., Lambert v. State, 110 A.3d 1253, 1255 (Del. 2015) 

(the parties agreed to a trial by stipulation, which allowed the defendant to retain his right 

to appeal the Superior Court’s suppression ruling). 

10 Abdul-Akbar v. State, 1999 WL 507292 (Del. June 1, 1999) (citing Superior Court 

Criminal Rule 11(h) and holding that the defendant’s failure to execute a guilty plea 

waiver of rights form did not affect his substantial rights and render his guilty plea 

invalid). 

11 Brown v. State, 108 A.3d 1201, 1202 (Del. 2015) (holding that the defendant’s valid 

guilty plea waived any right to challenge the strength of the State’s evidence, including 

the chain of custody of the drug evidence).
10 

arguably appealable issue. We also are satisfied that Scarborough’s counsel 

has made a conscientious effort to examine the record and has properly 

determined that Scarborough could not raise a meritorious claim in this 

appeal. 

 NOW, THEREFORE, IT IS ORDERED that the State’s motion to 

affirm is GRANTED. The judgment of the Superior Court is AFFIRMED. 

The motion to withdraw is moot. 

 BY THE COURT: 

 /s/Karen L. Valihura

 Justice