IN THE SUPREME COURT OF THE STATE OF DELAWARE 

EDWIN B. BORRERO, 

Defendant Below, 

Appellant, 

v. 

STATE OF DELAWARE, 

Appellee.

§ 

§ No. 162, 2022 

§ 

§ Court Below—Superior Court 

§ of the State of Delaware 

§ 

§ Cr. ID No. 2009013591 (S) 

§ 

§ 

§

 Submitted: September 8, 2022 

 Decided: October 4, 2022 

Before SEITZ, Chief Justice; VALIHURA 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 October 2020, the appellant, Edwin B. Borrero, was charged by 

information with multiple crimes, including driving under the influence (“DUI”) 

(fifth offense) and possession of a controlled substance. On April 20, 2022, Borrero, 

with the assistance of an interpreter, pleaded guilty to DUI (fifth offense). Under 

the plea agreement, the State agreed to enter a nolle prosequi on the remaining 

charges. The State also agreed to recommend a sentence of five years of Level V 

incarceration to be suspended after the eighteen-month minimum under 21 Del. C.
2

§ 4177(d)(8) and (d)(9), followed by eighteen months of Level III probation. Other 

conditions included a five-year loss of driver’s license, completion of a drug and 

alcohol abstinence program, and completion of an intensive inpatient or outpatient 

drug and alcohol treatment program. The Superior Court imposed the recommended 

sentence. This appeal followed. 

(2) On appeal, Borrero’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 Borrero of the provisions of Rule 26(c) and provided 

Borrero with a copy of the motion to withdraw and the accompanying brief. 

(3) Counsel also informed Borrero of his right to identify any points he 

wished this Court to consider on appeal. Borrero has submitted points for this 

Court’s consideration.1 The State has responded to Borrero’s points 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

 At the Court’s request, Counsel provided an English translation of Borrero’s points. 
3

devoid of at least arguably appealable issues that it can be decided without an 

adversary presentation.2 

(5) Borrero’s points on appeal may be summarized as follows: (i) the 

sentence is excessive; (ii) he should receive consideration for working twenty-five 

years at the same job, previously doing a mental health program for alcoholics, and 

successfully serving probation for two years; and (iii) he is currently unable to obtain 

work in the prison and wishes to be released early. After careful consideration, we 

find no merit to Borrero’s appeal. 

(6) This Court’s review of a sentence is “limited to whether the sentence is 

within the statutory limits prescribed by the General Assembly and whether it is 

based on factual predicates which are false, impermissible, or lack minimal 

reliability, judicial vindictiveness or bias, or a closed mind.”3 The sentence for DUI 

(fifth offense) is “not less than 3 years nor more than 5 years” of imprisonment.4 Up 

to half of the minimum sentence may be suspended if the defendant completes a drug 

and alcohol abstinence program and a drug and alcohol treatment program.5 

Borrero’s five-year sentence suspended after eighteen months fell within the 

statutory limits. 

2 Penson v. Ohio, 488 U.S. 75, 83 (1988); Leacock v. State, 690 A.2d 926, 927-28 (Del. 1996). 

3 Weston v. State, 832 A.2d 742, 746 (Del. 2003). 

4

 21 Del. C. § 4177(d)(5). 

5

Id. § 4177(d)(8), (9). 
4

(7) Borrero does not allege, and the record does not reflect, that the 

sentence is based on false, impermissible, or unreliable facts. Nor are there any 

allegations or sign of judicial vindictiveness, bias, or a closed mind. The Superior 

Court did not abuse its discretion in imposing the sentence set forth in the parties’ 

plea agreement. Borrero’s lengthy employment, previous completion of a program 

for alcoholics, and successful probation are laudable, but he does not dispute that he 

is guilty of DUI (fifth offense). 

(8) Having carefully reviewed the record, we conclude that Borrero’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 Borrero 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