Opinion
No. 677, 2002.
Submitted: March 21, 2003.
Decided: April 8, 2003.
Court Below-Superior Court of the State of Delaware, in and for New Castle County Cr.A. No. IN01-07-1280
Affirmed.
Unpublished opinion is below.
JERMAINE L. BARNHART, Defendant Below-Appellant, v. STATE OF DELAWARE, Plaintiff Below-Appellee. No. 677, 2002. Supreme Court of Delaware. Submitted: March 21, 2003. Decided: April 8, 2003.
Before HOLLAND, BERGER and STEELE, Justices
Carolyn Berger, Justice:
ORDER
This 8th day of April 2003, upon consideration of the appellant's brief filed pursuant to Supreme Court Rule 26(c), his attorney's motion to withdraw, and the State's response thereto, it appears to the Court that:
(1) The defendant-appellant, Jermaine L. Barnhart, was convicted by a Superior Court jury of one count of Assault in a Detention Facility. He was sentenced to 8 years incarceration at Level V, to be suspended after 7 ½ years for 6 months of decreasing levels of probation. This is Barnhart's direct appeal.
(2) The evidence at trial established that, on June 20, 2001, Barnhart was serving a sentence at the Delaware Correctional Center. On that day, Barnhart was on "strip cell status," meaning that he was not allowed to have anything in his cell with him, except for a mattress, blanket and pillow between the hours of 10:00 p.m. and 6:00 a.m. At 6:00 a.m., Sergeant Jack Evans, accompanied by several other guards, went to Barnhart's cell to remove the bedding. Barnhart turned over the bedding to the guards, but appeared to have contraband in his underwear. In order to investigate, Evans told Barnhart to come to the cell door to be handcuffed prior to the officers entering the cell. After coming to the cell door, Barnhart punched Evans through the bars of the cell, giving him a bloody nose and a cut lip.
(3) Barnhart's counsel has filed a brief and a motion to withdraw pursuant to Rule 26(c). 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).
(4) Barnhart's counsel asserts that, based upon a complete and careful examination of the record, there are no arguably appealable issues. By letter, Barnhart's attorney informed him of the provisions of Rule 26(c) and provided Barnhart with a copy of the motion to withdraw and the accompanying brief. Barnhart was also informed of his right to supplement his attorney's presentation. Barnhart has not raised any issues for this Court's consideration. The State has responded to the position taken by Barnhart's counsel and has moved to affirm the Superior Court's decision.
(5) This Court has reviewed the record carefully and has concluded that Barnhart's appeal is wholly without merit and devoid of any arguably appealable issue. We are also satisfied that Barnhart's counsel has made a conscientious effort to examine the record and the law and has properly determined that Barnhart 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.