Opinion
No. 148, 1999.
October 5, 1999.
Court Below — Superior Court of the State of Delaware, in and for New Castle County, Cr.A. Nos. 93-07-0509, 94-01-0134, 94-01-0137.
AFFIRMED.
Unpublished Opinion is below.
MARQUIS BROWN, Defendant Below-Appellant, v. STATE OF DELAWARE, Plaintiff Below-Appellee. No. 148, 1999. Supreme Court of Delaware. Submitted August 23, 1999. Decided October 5, 1999.
Court Below — Superior Court of the State of Delaware, in and for New Castle County, Cr.A. Nos. 93-07-0509, 94-01-0134, 94-01-0137.
Before WALSH, HOLLAND and BERGER, Justices
Randy J. Holland, Justice
ORDER
This 5th day of October 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) The defendant-appellant, Marquis Brown ("Brown"), pleaded guilty to Possession of Cocaine and Conspiracy in the Third Degree on November 30, 1993. He was sentenced to 1 year in prison on the Possession of Cocaine conviction, to be suspended for time served, for a total of 11 months probation. He was sentenced to 1 year in prison on the Conspiracy conviction, to be suspended for time served, for a total of 12 months probation. On April 13, 1994, Brown was found guilty of a probation violation. He was sentenced to 1 year in prison at Level V on the 1993 Possession of Cocaine conviction, to be suspended for 6 months probation at Level III after serving 6 months. The year of probation the Superior Court had imposed on the Conspiracy conviction was to remain in effect and run consecutive to this sentence. On June 2, 1994, Brown pleaded guilty to Possession of Cocaine and Maintenance of a Dwelling for the purpose of using a controlled substance. He was sentenced to 1 year in prison at Level V on the Possession of Cocaine conviction, to be suspended for 1 year at Level II. He was also sentenced to 2 years in prison on the Maintenance of a Dwelling conviction, to be suspended for 1 year of probation at Level III, after serving 1 year at Level V.
(2) On July 25, 1996, Brown again was found guilty of a probation violation. The Superior Court sentenced Brown to 6 months in prison in connection with the 1993 Possession of Cocaine conviction and to 1 year in prison, to be suspended after completion of a treatment program for 6 months at Level III, in connection with the 1994 Maintenance of a Dwelling conviction. The Superior Court also reimposed Brown's probationary sentences in connection with the 1993 Conspiracy conviction and the 1994 Possession of Cocaine conviction. These probationary sentences were to run consecutive to the newly-imposed sentences.
(3) On March 19, 1999, the Superior Court again found Brown guilty of a probation violation. In connection with the 1994 Maintenance of a Dwelling conviction, Brown was sentenced to 6 months in prison at Level V. In connection with the 1994 Possession of Cocaine conviction, he was sentenced to 9 months in prison, to be suspended after 6 months in prison at Level V for 6 months probation at Level III. He was discharged as unimproved from the probationary sentence for the 1993 Conspiracy conviction. At the hearing, the Superior Court considered the October 13, 1998 Evaluation/Recommendation of Brown's Probation/Parole Officer, which reported that Brown had begun a 2 = year probationary period on October 28, 1997 and had failed to report for 5 out of 8 appointments since June 3, 1998.
(4) Brown'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).
(5) Brown's counsel asserts that, based upon a careful and complete examination of the record, there are no arguably appealable issues. By letter, Brown's counsel informed Brown of the provisions of Rule 26(c) and provided him with a copy of the motion to withdraw, the accompanying brief and the complete trial transcripts. Brown was also informed of his right to supplement his attorney's presentation. Brown responded with a brief that raises one issue for this Court's consideration. The State has responded to the position taken by Brown's counsel as well as the issue raised by Brown and has moved to affirm the Superior Court's judgment.
(6) Brown raises one issue for this Court's consideration. He claims the Superior Court illegally sentenced him on March 19, 1999 for a probation violation. Brown contends that he was not on probation at the time of the hearing and, therefore, could not be in violation of probation. He further contends he had fully completed his sentences pursuant to his 1993 and 1994 plea agreements with the State. Brown's claim is without merit. According to the report of the Probation/Parole officer in charge of Brown's case, Brown had violated the terms of his probation. The Superior Court relied on this report, as well as the history of Brown's sentencings, when it sentenced Brown for a violation of probation on March 19, 1999. To the extent Brown contends he was not on probation at the time of the alleged violation, the record does not support that contention. Brown's claim that he is obligated to serve no more than the prison and probation time noted on his 1993 and 1994 plea agreements is incorrect as a matter of law. It is well settled that, upon finding a violation of probation, the Superior Court is authorized to reimpose any previously suspended prison term. Having determined that Brown had violated his probation for a third time, the Superior Court properly exercised its discretion to impose a new sentence, as it had done in connection with Brown's two previous probation violations.
Ingram v. State, Del. Supr., 567 A.2d 868, 869 (1989) (citing 11 Del. C. § 4334(c)).
(7) This Court has reviewed the record carefully and has concluded that Brown's appeal is wholly without merit and devoid of any arguably appealable issue. We are also satisfied that Brown's counsel has made a conscientious effort to examine the record and has properly determined that Brown 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.