IN THE SUPREME COURT OF THE STATE OF DELAWARE

QUINTIN MULDROW, Defendant Below, Appellant,

v. STATE OF DELAWARE, Plaintiff Below, Appellee. § § § No. 376, 2015 § § Court Below—Superior Court § of the State of Delaware § § Cr. ID No. 1310002191 § § § Submitted: June 17, 2016 Decided: August 23, 2016

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

ORDER

This 23 rd day of August 2016, upon consideration of the appe llant’s Supreme Court Rule 26(c) brief, the State’s respons e, and the record below, it appears to the Court that: (1) In February 2014, the appellant, Quintin Muldrow, w as charged by indictment with three counts of Burglary in the Sec ond Degree and three counts of Theft. The charges arose from three different burg laries. On September 16, 2014, after five witnesses testified at trial, Muldrow pl ed guilty to one count of Burglary in the Second Degree and one count of Burglary in t he Third Degree as a lesser included offense of Burglary in the Second Degree. The State agreed to enter a2

nolle prosequi on the remaining charges and to cap its recommenda tion for nonsuspended Level V time to six years. (2) On September 29, 2014, Muldrow filed a pro se motion to withdraw his guilty plea. On October 1, 2014, Muldrow moved to discharge his counsel. In an order dated October 10, 2014, the Superior Court denied Muldrow’s motion to withdraw his guilty plea. After a hearing on Octo ber 14, 2014 regarding Muldrow’s motion to discharge his counsel and his c ompetency to represent himself, the Superior Court allowed Muldrow’s couns el to withdraw and held that Muldrow could represent himself. (3) On November 12, 2014, Muldrow filed another motion to withdraw his guilty plea, which the Superior Court denied on November 25, 2014. On December 8, 2014, Muldrow filed a motion to dismiss the charges in the indictment. On January 12, 2015, Muldrow filed a m otion to vacate counts of the indictment and to compel production of photo line-u ps. The Superior Court denied the motion to vacate and to compel in an order date d April 13, 2015. (4) On June 19, 2015, at the sentencing hearing, the Su perior Court

denied Muldrow’s motion to dismiss. After Muldrow repeated his arguments in support of withdrawal of his guilty plea, the Super ior Court again found his guilty plea was knowing, intelligent, and voluntary. Mul drow was sentenced as follows: (i) for Burglary in the Second Degree, five years o f Level V incarceration,3

suspended after three years for eighteen months of Level III probation; and (ii) for Burglary in the Third Degree, three years of Level V incarceration. This appeal

followed. (5) On October 26, 2015, Muldrow filed a motion to appo int counsel. This Court appointed counsel (“Counsel”) to represe nt Muldrow in this appeal. On May 25, 2016, Counsel filed a brief and a motion to withdraw under Supreme Court Rule 26(c) (“Rule 26(c)”). Counsel asserts t hat, based upon a complete and careful examination of the record, there are no arg uably appealable issues. Counsel informed Muldrow of the provisions of Rule 26(c) and provided Muldrow with a copy of the motion to withdraw and the accom panying brief. (6) Counsel also informed Muldrow of his right to ident ify any points he wished this Court to consider on appeal. Muldrow h as raised several issues for this Court’s consideration. The State has responded to the issues raised by Muldrow and asked this Court to affirm the Superior Court’s judgment. (7) When reviewing a motion to withdraw and an accompan ying 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 devoid of at least arguably appealable issues that it can be decided without an4

adversary presentation. 1 In his points, Muldrow argues that: (i) the Super ior Court erred in denying his post-guilty plea motion to com pel the production of the original photo line-ups shown to one of the burglar y victims and three witnesses; and (ii) the Superior Court erred in denying his mo tions to withdraw his guilty plea

because the State violated Brady v. Maryland 2 and Brady v. United States 3 by failing to produce the exculpatory photo line-ups. Because Muldrow’s guilty plea

is central to the resolution of both of these claim s, we first address the Superior

Court’s denial of Muldrow’s motions to withdraw his guilty plea. (8) This Court reviews the denial of a motion to with draw a guilty plea

for abuse of discretion. 4 The defendant bears the burden of showing a fair and just reason to permit withdrawal of his plea. 5 A judge should permit withdrawal of a plea only if the judge determines that “the plea wa s not voluntarily entered or was entered because of misapprehension or mistake of de fendant as to his legal rights.” 6

1 Penson v. Ohio , 488 U.S. 75, 83 (1988); Leacock v. State , 690 A.2d 926, 927-28 (Del. 1996). 2 373 U.S. 83, 87 (1963) (holding that “suppression by the prosecution of evidence favorable to an accused upon request violates due process where the evidence is material either to guilt or to punishment”). 3 397 U.S. 742, 750-57 (1970) (holding a voluntary g uilty plea of guilty does not become vulnerable due to later judicial decisions, while r ecognizing that agents of the State may not produce a plea by actual or threatened physical har m or by mental coercion overbearing the will of the defendant). 4 Chavous v. State , 953 A.2d 282, 285 (Del. 2008). 5 Super. Ct. Crim. R. 32(d). 6 Scarborough v. State , 938 A.2d 644, 650 (Del. 2007) (quoting State v. Insley , 141 A.2d 619, 622 (Del. 1958)).5

(9) The record reflects that Muldrow’s guilty plea was knowing, intelligent, and voluntary. During the guilty plea colloquy, Muldrow affirmed that he had reviewed the Truth–In–Sentencing Guilty Plea form with his counsel, he wished to plead guilty to Burglary in the Second De gree and Burglary in the Third Degree, he freely and voluntarily admitted that he committed these crimes, he understood he was giving up certain constitutional rights by pleading guilty, and he was satisfied with his counsel’s representations. Absent clear and convincing evidence to the contrary, Muldrow is bound by his r epresentations during the guilty plea colloquy and the Truth-in-Sentencing Guilty Pl ea Form. 7 (10) The record does not support Muldrow’s claim that hi s guilty plea was involuntary because the State failed to produce ori ginal, exculpatory photo line-ups shown to one of the burglary victims and three witn esses for that burglary. At a May 2014 suppression hearing, two police officers t estified that a photo line-up

was shown to two witnesses and neither witness reco gnized anyone in the photo line-up. The police did not show the photo line-up to the victim because she stated that she would not be able to identify the person w ho she found robbing her apartment. The State produced copies of the photos in the line-up to Muldrow. (11) Muldrow’s speculation that there were additional ph oto line-ups and that production of the original photo line-ups woul d somehow exculpate him does

7 Somerville v. State , 703 A.2d 629, 632 (Del. 1997).6

not render his guilty plea involuntary. Muldrow kn ew months before his guilty plea that the police interviewed multiple witnesses and that the two witnesses who were shown a photo line-up did not recognize anyone in the line-up. Under these circumstances, the Superior Court did not err in de nying Muldrow’s motions to withdraw his guilty plea. As to Muldrow’s contenti on that the Superior Court erred in denying his motion to compel production of the original photo line-ups, a voluntary and intelligent plea, like Muldrow’s, con stitutes a waiver of alleged defects or errors occurring before entry of the ple a. 8 (12) Having carefully reviewed the record, we conclude t hat Muldrow’s appeal is wholly without merit and devoid of any ar guably appealable issue. We

also are satisfied that Counsel has made a conscien tious effort to examine the record and the law and has properly determined that Muldrow 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. Justice

8 Miller v. State , 840 A.2d 1229, 1232 (Del. 2003)).