Opinion
No. 9, 1999.
September 7, 1999.
Appeal from the Superior Court, New Castle County, CrA IN97-11-1124, and-1126.
AFFIRMED
Unpublished Opinion is below.
NANCY A. FRIEDMAN, Defendant Below-Appellant, v. STATE OF DELAWARE, Plaintiff, Below-Appellee. No. 9, 1999. Supreme Court of Delaware. Submitted: July 29, 1999. Decided: September 7, 1999.
Court Below — Superior Court of the State of Delaware, in and for New Castle County, § Cr.A. Nos. IN97-11-1124, § and -1126
Before HOLLAND, HARTNETT, and BERGER, Justices.
ORDER
This 7th day of September 1999 upon consideration of the appellant's brief filed pursuant to Supreme Court Rule 26(c), her attorney's motion to withdraw, and the State's response thereto, it appears to the Court that:
(1) In December 1998, a Superior Court jury found the defendant-appellant, Nancy Friedman, guilty of felony theft and conspiracy. The Superior Court sentenced Friedman to a total term of six years in jail, which was suspended for time served with the balance to be served at Level II probation. This is Friedman's direct appeal.
(2) Friedman's counsel on appeal has filed a brief and a motion to withdraw pursuant to Rule 26(c). Friedman's counsel asserts that, based upon a complete and careful examination of the record, there are no arguably appealable issues. By letter, Friedman's attorney informed her of the provisions of Rule 26(c) and provided Friedman with a copy of the motion to withdraw and the accompanying brief. Friedman also was informed of her right to supplement her attorney's presentation. Friedman responded with a two page letter that challenges her trial attorney's performance in several respects. The State has responded to the position taken by Friedman's counsel as well as to Friedman's letter and has moved to affirm the Superior Court's judgment.
(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.
(4) Friedman has raised several claims for this Court's consideration, all of which challenge the performance of her trial counsel. This Court, however, will not consider on direct appeal any claim of ineffective assistance of counsel that was not raised below. Accordingly, we will not consider Friedman's claims of ineffective assistance for the first time in this direct appeal.
(5) This Court has reviewed the record carefully and has concluded that Friedman's appeal is wholly without merit and devoid of any arguably appealable issue. We also are satisfied that Friedman's counsel has made a conscientious effort to examine the record and has properly determined that Friedman could not raise a meritorious claim in this appeal.
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).
Desmond v. State, Del. Supr., 654 A.2d 821, 829 (1994); Duross v. State, Del. Supr., 494 A.2d 1265, 1267 (1985).
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.
BY THE COURT:
/s/ Carolyn Berger
Justice