Opinion
ID. No. 0503004242.
Submitted: January 18, 2006.
Decided: April 27, 2006.
Upon Consideration of Appellant's Appeal From Decision of the Court of Common Pleas AFFIRMED
Lloyd A. Schmid, Jr., Esq., Dover, Delaware. Attorney for Appellant.
Kathleen A. Dickerson, Esq., Department of Justice, Dover, Delaware. Attorney for Appellee.
OPINION
This is an appeal from the Court of Common Pleas. Leon Woodlin ("the defendant") was charged with one count of Terroristic Threatening. Trial was held before a Judge of the Court of Common Pleas, sitting without a jury, who found him guilty as charged. Woodlin's counsel has filed a brief and motion to withdraw pursuant to Superior Court Criminal Rule 39 and, by reference thereto in the Superior Court rule, Supreme Court Rule 26. The Court is convinced the defendant's counsel has made a conscientious examination of the record and that the appeal is devoid of appealable issues. Therefore, the decision of the Court of Common Pleas is affirmed.
FACTS
On March 7, 2005, the defendant allegedly committed the crime of Terroristic Threatening in violation of Title 11, Section 621(a)(1) of the Delaware Code by intentionally threatening to commit a crime likely to result in death or serious bodily injury to William Hagan ("the complaining witness"). The threat, according to the Information filed by the Attorney General's Office, was that the defendant was going to shoot the complaining witness.During the bench trial on May 31, 2005, one State witness testified she saw and heard the defendant say "Get on up the road, fagot" and "I'm going to whip your ass" to the complaining witness. A second State witness stated that he witnessed the defendant and the complaining witness say something to each other, but could not hear the specifics of what was said. He stated he saw the complaining witness stop the car and say "excuse me" to the defendant at which point the defendant said something back to the complaining witness, prompting him to tell the defendant he was going to call the police as he drove away. The complaining witness testified as to the same things, and also stated that the defendant threatened to burn down his house and shoot him. The incident occurred while the complaining witness, who is a neighbor of the defendant, was driving by the defendant, who was in another neighbor's yard. The sole witness for the defendant testified that she heard the defendant state, "Get on down the road" to the complaining witness but did not hear him make any threats or say anything else.
The trial court found the defendant guilty, stating that it was firmly convinced of the defendant's guilt and that the State's evidence proved the defendant's guilt beyond a reasonable doubt. In addition to paying court costs, the defendant was given a fine and sentenced to one year at Level V, suspended for one year at Level II.
STANDARD OF REVIEW
When addressing appeals from the Court of Common Pleas, this Court sits as an intermediate appellate court. As such, its function is the same as that of the Supreme Court. The court's role is to "correct errors of law and to review the factual findings of the Court below to determine if they are `sufficiently supported by the record and are the product of an orderly and logical deductive process.'" If substantial evidence exists for a finding of fact, this Court must accept that ruling. It must not make its own factual conclusions, weigh evidence or make credibility determinations. Errors of law are reviewed de novo. Findings of fact are reviewed only to verify that they are supported by substantial evidence. The standard of review when considering the sufficiency of the evidence on an appeal is whether, after viewing the evidence in the light most favorable to the State, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.
State v. Richards, 1998 Del. Super. LEXIS 454.
Baker v. Connell, 488 A.2d 1303 (Del. 1985).
State v. Huss, 1993 Del. Super. LEXIS 481, at *2 (citing Levitt v. Bouvier, 287 A.2d 671, 673 (Del. 1972)).
Johnson v. Chrysler, 213 A.2d 64 (Del. 1965).
Downs v. State, 570 A.2d 1142, 1144 (Del. 1990).
Shahan v. Landing, 643 A.2d 1357 (Del. 1994).
Dixon v. State, 567 A.2d 854, 857 (Del. 1989); Davis v. State, 453 A.2d 802, 803 (Del. 1982); see Jackson v. Virginia, 443 U.S. 307, 319 (1979).
DISCUSSION
Superior Court Criminal Rule 39(c) provides that an appeal on the record shall proceed "so far as they are applicable to criminal cases and are not inconsistent . . . with Supreme Court Rule 26 when appropriate." Supreme Court Rule 26(c) allows an attorney to file a motion to withdraw as counsel if the attorney concludes an appeal is wholly without merit. The motion must be accompanied by a brief and a statement by the attorney that the attorney (1) supplied the client with a copy of the motion and the brief, and (2) advised the client that the client could state in a writing, delivered to the attorney within 30 days, any point that the client wanted the Court to consider; and any statement received from the client. Supreme Court Rule 26(c) further provides that after the record is complete, the court "shall determine, without oral argument, whether the appeal, on its face, is wholly without merit. If the Court so determines, the Court may order that the judgment below be affirmed." In considering a motion to withdraw and an accompanying brief under Rule 26(c), the standard and scope of review is twofold:
(a) the Court must be satisfied that defense counsel has made a conscientious examination of the record and the law for arguable claims; 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.
Wing v. State, 690 A.2d 921 (Del. 1996) citing Penson v. Ohio, 488 U.S. 75 (1988); McCoy v. Court of Appeals, 486 U.S. 429 (1988); Anders v. California, 386 U.S. 738 (1967).
After reviewing the record in this case, the Court is satisfied defense counsel has conscientiously examined the record and the law for arguable claims. Further, the Court finds that this case does not contain any appealable issues. Under Title 11, Section 621(a)(1) of the Delaware Code, a person is guilty of Terroristic Threatening when he or she "threatens to commit any crime likely to result in death or serious injury to person or property." The crime is complete when an individual "threatens a crime, the commission of which would reasonably entail death or serious physical or property injury. Whether the threatened act is completed is immaterial." In addition, the complaining witness testified that the defendant threatened to shoot him and burn his house down. In reaching a verdict, the trial court acknowledged some inconsistencies in testimony but recognized that the differences were not unusual given the fact that the individuals witnessing the incident saw it from different points of view. In reaching a guilty verdict, the trial court found the State's evidence was credible while discounting the testimony offered by the defense witness as being "not credible." Included in the State's evidence was testimony from the complaining witness who stated that the defendant threatened to — among other things — shoot him. The crime of Terroristic Threatening is completed when an individual threatens a crime, the commission of which would reasonably entail death or serious physical injury.
Allen v. State, 453 A.2d 1166, 1168 (1982).
After a complete review of the record, I conclude that the appeal is wholly without merit. Defense counsel's motion to withdraw is granted. The judgment of the trial court is affirmed.