Opinion
No. 329, 2003.
Submitted: October 28, 2003.
Decided: November 12, 2003.
Court Below: Superior Court of the State of Delaware, in and for New Castle County, Cr.A. Nos. IN02-01-0048 through Cr. ID 0112015629.
Before VEASEY, Chief Justice, HOLLAND, and JACOBS, Justices.
ORDER
This 12th day of November 2003, 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) A Superior Court jury convicted the defendant-appellant, Jessie Dale, of possession of heroin, maintaining a vehicle for keeping a controlled substance, and conspiracy. The Superior Court sentenced Dale to a total period of five years at Level V incarceration, to be suspended after three years for two years at Level III probation. This is Dale's direct appeal.
(2) Dale's counsel on appeal has filed a brief and a motion to withdraw pursuant to Rule 26(c). Dale's counsel asserts that, based upon a complete and careful examination of the record, there are no arguable issues. By letter, Dale's attorney informed him of the provisions of Rule 26(c) and provided Dale with a copy of the motion to withdraw and accompanying brief. Dale also was informed of his right to supplement his attorney's presentation. Dale has not raised any issues for this Court's consideration. The State has responded to the position taken by Dale's counsel and has moved to affirm the Superior Court's decision.
(3) 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.
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).
(4) The record in this case reflects that the only testimony at trial was from three witnesses presented by the State. Two police detectives testified that Dale was spotted driving a van. Dale's codefendant, Brian Broomer, was in the passenger seat. The detectives were aware that Dale did not have a license and that there was an outstanding capias warrant for him in the Court of Common Pleas.
When the officers stopped the vehicle, they saw thirteen small baggies on the driver's side floor containing a substance that appeared to be heroin. A subsequent search of the vehicle turned up over one hundred additional baggies with the same substance. A medical examiner testified at trial that the substance in the baggies was heroin. Dale did not testify or present any other witnesses. Dale's defense was that the State had failed to prove that Dale possessed drugs or knew drugs were in the vehicle. The jury did not find Dale guilty of possession with intent to deliver but did find him guilty of the lesser-included offense of simple possession, as well as guilty of conspiracy and maintaining a vehicle.
(5) After a careful review of the record, the Court has concluded that Dale's appeal is wholly without merit and devoid of any arguably appealable issue.
We also are satisfied that Dale's counsel has made a conscientious effort to examine the record and the law and has properly determined that Dale 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.