Opinion
No. 248, 2001
Decided: October 31, 2001
Superior Court New Castle County. Cr.A. No. IN00-02-0191 and -0194.
AFFIRMED
Unpublished Opinion is below.
MARVIN SWANSON, Defendant Below-Appellant, v. STATE OF DELAWARE, Plaintiff Below-Appellee. No. 248, 2001 Supreme Court of the State of Delaware. Decided: October 31, 2001
Before VEASEY, Chief Justice, WALSH, and STEELE, Justices.
ORDER
This 31st day of October 2001, 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, Marvin Swanson, was convicted, following a Superior Court bench trial, of possession with intent to deliver cocaine and tampering with physical evidence. The Superior Court sentenced Swanson on both charges to a total of nine years at Level V incarceration, suspended after five years for decreasing levels of supervision.
At trial, Swanson's defense was mistaken identity. This is Swanson's direct appeal.
(2) Swanson's counsel on appeal has filed a brief and a motion to withdraw pursuant to Rule 26(c). Swanson's counsel asserts that, based upon a complete and careful examination of the record, there are no arguably appealable issues. By letter, Swanson's attorney informed him of the provisions of Rule 26(c) and provided Swanson with a copy of the motion to withdraw and the accompanying brief. Swanson also was informed of his right to supplement his attorney's presentation. Swanson has not raised any issues for this Court's consideration. The State has responded to the position taken by Swanson'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) This Court has reviewed the record carefully and has concluded that Swanson's appeal is wholly without merit and devoid of any arguably appealable issue. We also are satisfied that Swanson's counsel has made a conscientious effort to examine the record and the law and has properly determined that Swanson 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.