Opinion
No. 298, 1999.
Submitted: December 2, 1999.
Decided: December 17, 1999.
Court Below: Superior Court of the State of Delaware, in and for Sussex County in Cr. A. Nos. S98-10-0257 0258, Def. ID No. 9810001895.
AFFIRMED.
Before HOLLAND, HARTNETT and BERGER, Justices.
ORDER
This 17th day of December 1999, upon consideration of the appellant's brief filed pursuant to Supreme Court Rule 26(c) ("Rule 26(c)"), his attorney's motion to withdraw, and the State's response thereto, it appears to the Court that:
(1) On October 2, 1998, the defendant-appellant, Charles W. Robinson, was arrested in Lewes, Delaware, for driving a motor vehicle while his driver's license was suspended. The record reflects that, during a consent search of Robinson's vehicle, the police discovered prescription drugs in an unmarked bottle. Furthermore, the police confiscated three packs of heroin from Robinson's girlfriend, who was a passenger in Robinson's car. Robinson admitted to the police that he knew the heroin was in his vehicle, and that he had intended on consuming the heroin with his girlfriend once he returned to his home in Lewes.
(2) On October 28, 1998, Robinson was charged by information with Maintaining a Vehicle for Keeping Controlled Substances, Drugs Not in Original Container, Conspiracy Third Degree, Possession of Heroin, and Driving While Suspended. On March 5, 1999, Robinson entered the Superior Court's Drug Diversion Program on the charges of Possession of Heroin and Conspiracy Third Degree. The State entered a nolle prosequi on the remaining charges.
The Drug Diversion Program is part of the Superior Court's expedited drug case management system.
(3) On June 11, 1999, Robinson was terminated from the diversion program for noncompliance. The Superior Court then held a stipulated trial and found Robinson guilty of Possession of Heroin and Conspiracy Third Degree. The Superior Court sentenced Robinson to a total of two years at Level V incarceration, suspended for nine months at a Level IV residential substance abuse treatment program, suspended, after the successful completion of the treatment program, for 18 months at Level III.
As a condition of entering the diversion program, a defendant agrees that, in the event the defendant is terminated from the program, facts stipulated to by the defendant will be the sole basis of the evidence in any subsequent trial. In this case, the record reflects that Robinson stipulated to facts found in the police report, the affidavit of probable cause, and the medical examiner's controlled substances laboratory report.
(4) Robinson's counsel has filed a brief and a motion to withdraw pursuant to Rule 26(c). Robinson's counsel asserts that, based upon a complete and careful examination of the record, there are no arguably appealable issues. Robinson's attorney states that he informed Robinson of the provisions of Rule 26(c) and provided Robinson with a copy of the motion to withdraw and the accompanying brief. Robinson also was informed of his right to supplement his attorney's presentation. Robinson has not raised any issues for this Court's consideration. The State has responded to the position taken by Robinson's counsel and has moved to affirm the conviction and sentence.
(5) 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) the Court must be satisfied that defense counsel has made a conscientious examination of the record and the law for claims that could arguably support the appeal; and (b) the 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).
(6) This Court has reviewed the record carefully and has concluded that Robinson's appeal is wholly without merit and devoid of any arguably appealable issue. We also are satisfied that Robinson's counsel has made a conscientious effort to examine the record and has properly determined that Robinson 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.