IN THE SUPREME COURT OF THE STATE OF DELAWARE

MARK GUESS,

Defendant BelowAppellant,

v.

STATE OF DELAWARE,

Plaintiff BelowAppellee.

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§ No. 429, 2014

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§

§

§ Court Below—Superior Court

§ of the State of Delaware,

§ in and for New Castle County

§ Cr. ID 1111020337

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§

Submitted: October 20, 2014

 Decided: December 4 2014

Before STRINE, Chief Justice, RIDGELY, and VALIHURA, Justices.

O R D E R

This 4th day of December 2014, upon consideration of the appellant's 

Supreme Court Rule 26(c) brief, his attorney's motion to withdraw, and the 

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

(1) The defendant-appellant, Mark Guess, filed this appeal from the 

Superior Court’s denial of his first motion for postconviction relief. Guess’s 

counsel on appeal has filed a no-merit brief and a motion to withdraw under 

Rule 26(c). Counsel asserts that, based upon a complete and careful 

examination of the record, there is no merit to the appeal. Despite the 

opportunity to do so, Guess did not raise any points for this Court’s 

consideration on appeal. The State has filed a response and moves to affirm 
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the Superior Court’s judgment. We find no merit to Guess’s appeal. 

Accordingly, we affirm.

(2) The record reflects that Guess was indicted in 2012 on multiple 

counts of burglary and theft, among other charges, arising from a string of 

burglaries. Guess’s trial counsel filed a motion to suppress evidence that 

had been obtained through the use of a GPS tracking device. On February 1, 

2013, the Superior Court held a hearing on the suppression motion. During 

the course of the hearing, an issue was raised about whether the police had 

complied with the terms of the GPS warrant that had been issued by a 

Pennsylvania court. The Superior Court denied the motion to suppress but 

directed the State to supply supplemental information about the issue raised.

(3) After the State supplied the requested information, defense 

counsel contacted the prosecutor and indicated that Guess was prepared to 

plead guilty if the State, among other things, would return a vehicle seized 

during Guess’s arrest to its rightful owner. Defense counsel indicated that if 

the parties could not agree, then Guess would renew his motion to suppress 

in light of the State’s supplemental response. Trial was scheduled to begin 

on March 26, 2013. On March 21, 2013, Guess pled guilty to one count 

each of Burglary in the Second Degree and Theft Over $1500. In exchange 

for his plea, the State dismissed the remaining charges and agreed not to 
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seek habitual offender sentencing. The State also agreed to return the seized 

vehicle to its owner. The Superior Court accepted the plea and immediately 

sentenced Guess to a total period of ten years at Level V incarceration to be 

suspended after serving eight years in prison for a period of probation. 

Guess did not appeal. 

(4) In June 2013, Guess filed a motion for reduction of sentence, 

which the Superior Court denied. Again, Guess did not appeal. In 

September 2013, he filed his first motion for postconviction relief. He 

alleged that his trial counsel was ineffective for failing to renew the motion 

to suppress. He also alleged that his Fourth Amendment rights were violated 

because the Pennsylvania warrant should only have been deemed valid for 

30 days and because the police engaged in a warrantless search by 

monitoring a GPS device without a Delaware warrant. The Superior Court 

appointed counsel to represent Guess. Counsel filed an amended motion. 

The Superior Court denied postconviction relief on the ground that trial 

counsel’s failure to renew the suppression motion was objectively 

reasonable under the circumstances because counsel had been actively 

negotiating a very favorable plea on behalf of his client. This appeal 

followed.
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(5) Guess’s appointed counsel on appeal has filed a brief and a 

motion to withdraw pursuant to Rule 26(c). Guess’s counsel asserts that

there are no meritorious issues he could argue on appeal challenging the 

Superior Court’s denial of postconviction relief. Guess was informed of his 

right to supplement his attorney's presentation. He did not raise any issues 

for the Court’s consideration. 

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

consideration of a motion to withdraw and an accompanying brief under 

Rule 26(c) is twofold: (a) this Court must be satisfied that defense counsel 

has made a conscientious examination of the record and the law for arguable 

claims; and (b) this Court must 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 an adversary presentation.1

(7) This Court has reviewed the record carefully and has concluded 

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

appealable issue. We also are satisfied that Guess’s counsel has made a 

conscientious effort to examine the record and the law and has properly 

determined that Guess could not raise a meritorious claim in this appeal. 

 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).
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The Superior Court did not err in denying Guess’s motion for postconviction 

relief.

NOW, THEREFORE, IT IS ORDERED that the judgment of the 

Superior Court is AFFIRMED. The motion to withdraw is moot.

BY THE COURT:

/s/ Karen L. Valihura

Justice