Opinion
No. 70, 2002
Submitted: June 26, 2002
Decided: August 9, 2002
Court Below — Superior Court of the State of Delaware, in and for Sussex County Cr.A. No. IS01-10-0666 and -0669 Cr. ID 0110011416.
Affirmed.
Unpublished opinion is below.
ANDREW A. AYRES, Defendant Below-Appellant, v. STATE OF DELAWARE, Plaintiff Below-Appellee. No. 70, 2002 In the Supreme Court of the State of Delaware. Submitted: June 26, 2002 Decided: August 9, 2002
Before VEASEY, Chief Justice, BERGER and STEELE, Justices.
MYRON T. STEELE, Justice.
ORDER
This 9th day of August 2002, 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, Andrew Ayres, pleaded no contest to one count of possession of cocaine within 1000 feet of a school and one count of resisting arrest. The Superior Court sentenced Ayres on both charges to a total of six years at Level V incarceration, to be suspended upon successful completion of boot camp for five and a half years of probation. This is Ayres' direct appeal.
(2) Ayres' counsel on appeal has filed a brief and a motion to withdraw pursuant to Rule 26(c). Ayres' counsel asserts that, based upon a complete and careful examination of the record, there are no arguably appealable issues. By letter, Ayres' attorney informed him of the provisions of Rule 26(c) and provided Ayres with a copy of the motion to withdraw and accompanying brief. Ayres also was informed of his right to supplement his attorney's presentation. Ayres did not respond with any points for the Court's consideration. The State has responded to the position taken by Ayres' 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) Although Ayres did not present any issues in response to his attorney's motion to withdraw, we note that Ayres separately tendered to the Court a letter containing his "grounds" for appeal. Ayres' letter raises issues challenging the circumstances of his arrest and the police officer's allegedly conflicting versions of those events. The State contends that Ayres has waived his right to raise these claims. We agree. The transcript of the plea colloquy reflects that Ayres entered into his plea agreement knowingly, intelligently, and voluntarily. By entering into the plea agreement, Ayres waived his right to attack any alleged defects that preceded the entry of his plea.
State v. Stoesser, 183 A.2d 824, 825 (Del.Super.Ct. 1962).
(5) This Court has reviewed the record carefully and has concluded that Ayres' appeal is wholly without merit and devoid of any arguably appealable issue. We also are satisfied that Ayres' counsel has made a conscientious effort to examine the record and the law and has properly determined that Ayres 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.