IN THE SUPREME COURT OF THE STATE OF DELAWARE 

KEVIN KIMBROUGH, 

 

Defendant Below, 

Appellant, 

v. 

STATE OF DELAWARE, 

Appellee.

§ 

§ No. 360, 2023 

§ 

§ Court Below–Superior Court 

§ of the State of Delaware 

§ 

§ Cr. ID No. 1904013731 (K) 

§ 

§ 

§

 Submitted: February 12, 2024 

 Decided: April 26, 2024 

Before SEITZ, Chief Justice; VALIHURA and GRIFFITHS, Justices. 

ORDER 

 After consideration of the appellant’s opening brief, the State’s motion to 

affirm, and the Superior Court record, it appears to the Court that: 

 (1) The appellant, Kevin Kimbrough, appeals the Superior Court’s denial 

of his first motion for postconviction relief. The State has filed a motion to affirm 

the judgment below on the ground that it is manifest on the face of Kimbrough’s 

opening brief that his appeal is without merit. We agree and affirm. 

 (2) In July 2019, a Superior Court grand jury charged Kimbrough by 

indictment with attempted first-degree murder, attempted first-degree carjacking, 

possession of a deadly weapon during the commission of a felony (“PDWDCF”), 

and first-degree unlawful imprisonment. On November 27, 2019, Kimbrough 
2 

pleaded guilty to first-degree assault as a lesser-included offense of attempted firstdegree murder, PDWDCF, and first-degree unlawful imprisonment. Following a 

presentence investigation, the Superior Court sentenced Kimbrough to 30 years and 

6 months of unsuspended incarceration, followed by decreasing levels of 

supervision. When announcing Kimbrough’s sentence, the court cited “at least” 

seven aggravating factors and noted the absence of any mitigating factors.1 

Kimbrough did not appeal his convictions or sentence. 

 (3) In May 2020, Kimbrough filed a motion for sentence modification. The 

Superior Court denied the motion, finding that the sentence remained appropriate 

for the reasons stated at sentencing. Kimbrough did not appeal. 

 (4) In March 2021, Kimbrough filed a pro se motion for postconviction 

relief under Superior Court Criminal Rule 61. Kimbrough argued that trial counsel 

was ineffective for failing to explore a justification defense, his plea was coerced, 

and the plea agreement had been breached. After expanding the record with briefing 

and an affidavit from trial counsel, a Superior Court commissioner recommended 

that the Superior Court deny Kimbrough’s motion as procedurally barred and 

meritless.2 Kimbrough did not file any objections to the commissioner’s report, and 

1

 State’s Mot. to Affirm, Ex. H at 12. 

2

 Id., Ex. B at 10. 
3 

the Superior Court thereafter adopted the commissioner’s report and 

recommendation in its entirety. This appeal followed. 

(5) We review the Superior Court’s denial of postconviction relief for 

abuse of discretion.3 We review de novo claims of constitutional violations, 

including claims of ineffective assistance of counsel.4 In order to prevail on a claim 

of ineffective assistance of counsel, a defendant must demonstrate that (i) trial 

counsel’s representation fell below an objective standard of reasonableness,5 and (ii) 

there is a reasonable probability that, but for counsel’s errors, the result of the 

proceeding would have been different.6 In the context of a guilty plea, a defendant 

must show “that there is a reasonable probability that, but for counsel’s errors, he 

would not have pleaded guilty and would have insisted on going to trial.”7

(6) In his opening brief on appeal, Kimbrough argues: (i) the Superior 

Court erred when it adopted the commissioner’s report in its entirety because his 

claims were not procedurally barred; (ii) his plea was coerced; and (iii) because his 

plea was coerced, Kimbrough is entitled to a “return of the 4–10 year non-mandatory 

plea bargain that his counsel advised him to accept.”8 As a preliminary matter, 

3 Baynum v. State, 211 A.3d 1075, 1082 (Del. 2019). 

4

Id. 

5 Strickland v. Washington, 466 U.S. 668, 687-88 (1984). 

6

Id. at 694. 

7 Albury v. State, 551 A.2d 53, 60 (Del. 1988) (quoting Hill v. Lockhart, 474 U.S. 52, 58 (1985)). 

8

 Opening Br. at 20. 
4 

Kimbrough is correct that his claims were not procedurally barred.9 But we 

nevertheless affirm the Superior Court’s denial of his motion for postconviction 

relief on the independent and alternative basis that his claims are without merit.10

(7) Kimbrough claims that trial counsel “instructed him to accept a plea 

offer of 4–10 years’ incarceration.” This argument is belied by the record. As the 

plea agreement paperwork makes clear, the parties agreed to defer sentencing until 

after a presentence investigation, and the State did not agree to cap its sentencing 

recommendation to any period of time, much less 10 years. Indeed, Kimbrough’s 

reference to a 4–10 timeframe appears to have been taken from the Truth-inSentencing (“TIS”) Guilty Plea Form, which listed the TIS sentencing guidelines 

(2–5 years each for attempted first-degree assault and PDWDCF). Simply put, the 

terms of the plea agreement were not breached. 

(8) We have closely reviewed the record—including trial counsel’s 

affidavit, the guilty-plea colloquy transcript, and the sentencing transcript—and 

conclude that Kimbrough’s claim that his plea was coerced is without merit. Before 

the court accepted Kimbrough’s guilty plea, Kimbrough acknowledged that: (i) he 

9 See Green v. State, 238 A.3d 160, 175 (Del. 2020) (“[I]neffective-assistance claims are not 

subject to Rule 61(i)(3)’s bar because they cannot be asserted in the proceedings leading to the 

judgment of conviction under the Superior Court’s rules and this Court’s precedent.”); Del. Super. 

Ct. Crim. R. 32(d) (providing that any motion to set aside a plea after a defendant has been 

sentenced must be made under Rule 61). 

10 See Unitrin, Inc. v. Am. Gen. Corp., 651 A.2d 1361, 1390 (Del. 1995) (recognizing that this 

Court may affirm a trial court’s judgment on the basis of a different rationale than that relied upon 

by the trial court). 
5 

was guilty of first-degree assault, PDWDCF, and unlawful imprisonment; (ii) he 

faced a maximum penalty of 52 years in prison and that sentencing would be 

scheduled for a later date; and (iii) he was satisfied trial counsel’s advocacy on his 

behalf. Absent clear and convincing evidence to the contrary, Kimbrough “is bound 

by his answers on the Truth-in-Sentencing Guilty Plea Form and by his sworn 

testimony prior to the acceptance of the guilty plea.”11 We note that Kimbrough 

received a substantial benefit by pleading guilty. Had Kimbrough proceeded to trial, 

it is probable that he would have been found guilty of the charged offenses—given, 

among other evidence, the victim’s statement to the investigating officer that she 

was attacked at knifepoint by an unknown man (identified as Kimbrough by an 

eyewitness) who repeatedly stabbed her as he demanded her car keys. If so 

convicted, Kimbrough faced a possible life sentence. 

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

GRANTED and the judgment of the Superior Court is AFFIRMED. 

 BY THE COURT: 

 

/s/ Collins J. Seitz, Jr. 

 Chief Justice 

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