Opinion
No. 356, 2005.
Submitted: February 24, 2006.
Decided: May 24, 2006.
Superior Court of the State of Delaware, in and for Kent County Cr. ID 0210016932.
Before HOLLAND, BERGER, and JACOBS, Justices.
ORDER
This 24th day of May 2006, 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, Anzara Brown, filed this appeal from the sentence imposed by the Superior Court following a contested violation of probation hearing. The Superior Court sentenced Brown to four years at Level V incarceration to be suspended after serving three years for probation. This is Brown's appeal.
(2) Brown's counsel on appeal filed a brief and a motion to withdraw pursuant to Rule 26(c). Brown's counsel asserts that, based upon a complete and careful examination of the record, there are no arguably appealable issues. By letter, Brown's attorney informed him of the provisions of Rule 26(c) and provided Brown with a copy of the motion to withdraw and the accompanying brief. Brown also was informed of his right to supplement his attorney's presentation. The State responded to counsel's brief, as well as Brown's points, and requested that the judgment of the Superior Court be affirmed.
(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) The record in this case reflects that Brown pled guilty in 2002 to delivery of cocaine and was sentenced to six years at Level V incarceration, to be suspended upon successful completion of the Key Program for Level IV Crest and Crest Aftercare, followed by probation. Brown was found in violation of the terms of his probationary sentence in August 2004 and again in December 2004.
(5) In May 2005, after a confidential police informant purchased cocaine from Brown, the police obtained a search warrant for Brown's apartment. Upon the officers executing the search warrant, Brown informed them that cocaine could be found in a baby's crib in Brown's room and inside a jacket pocket in his bedroom closet. The officers subsequently recovered a total of 24.2 grams of cocaine. Brown was arrested on charges that included trafficking and possession with intent to deliver, and also was charged with violating probation.
(6) At the contested VOP hearing, Brown's counsel requested the Superior Court to stay the VOP hearing until the new criminal charges were resolved. The Superior Court denied the request and proceeded to hear testimony from a Dover police detective about the drug purchases and the execution of the warrant to search Brown's apartment. The Superior Court found Brown in violation of probation because of his criminal conduct and sentenced him to four years at Level V to be suspended after serving three years for probation.
(7) The gravemen of Brown's complaint on appeal is that the Superior Court erred by not staying the VOP hearing until after the adjudication of the new criminal charges. Brown asserts that, by requiring him to defend the VOP charge first, the State denied him the opportunity to challenge the validity of the search warrant leading to his arrest and found him guilty of violating probation before the underlying charges were proven at trial.
(8) Brown suggests by his argument that if the Superior Court in the underlying criminal proceedings invalidated the search warrant and suppressed any evidence seized as a result, then the suppressed evidence would not have been admissible during the VOP proceedings. This Court, however, has never adopted such a rule as a matter of Delaware law. Moreover, the United States Supreme Court has specifically held that the federal exclusionary rule does not bar the introduction at a parole revocation hearing of evidence seized in violation of a parolee's Fourth Amendment rights under the federal Constitution.
See Fuller v. State, 844 A.2d 290, 293 (Del. 2004) ("[W]e do not reach the State's argument that the exclusionary rule does not apply to probation revocation proceedings.").
Pennsylvania Bd. of Probation Parole v. Scott, 524 U.S. 357, 364 (1998).
(9) We need not reach this issue in Brown's case because after this Court received supplemental memoranda on appeal, however, Brown's motion to suppress, which challenged the validity of the search warrant in the underlying criminal action, was denied. Thereafter, Brown pled guilty on March 21, 2006 to one count of possession with intent to deliver. Brown's subsequent guilty plea to a new criminal charge leads us to conclude that his current appeal from the finding of a probation violation, arising from the same criminal conduct to which he pled guilty, is wholly without merit and devoid of any arguably appealable issue.
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.