Opinion
No. 570, 2001 Cr. ID No. 9810003094.
Submitted: April 1, 2002
Decided: May 6, 2002
Court Below — Superior Court of the State of Delaware, in and for Kent County.
Affirmed.
Unpublished opinion is below.
ROBERT G. COLE, JR., Defendant Below-Appellant, v. STATE OF DELAWARE, Plaintiff Below-Appellee. No. 570, 2001 Cr. ID No. 9810003094. In the Supreme Court of the State of Delaware. Submitted: April 1, 2002 Decided: May 6, 2002
Before VEASEY, Chief Justice, WALSH, and HOLLAND, Justices.
JOSEPH T. WALSH, Justice.
ORDER
This 6TH day of May 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, Robert G. Cole, Jr., pled guilty in 1998 to one count of trafficking cocaine. The Superior Court, pursuant to 11 Del. C. § 6712, deferred sentencing on Cole's conviction in order to permit Cole to complete the first offender boot camp diversion program. In July 2001, Cole was charged with a violation of probation (VOP). Following a hearing on October 26, 2001, the Superior Court found Cole in violation of probation and sentenced him, effective July 19, 2001, to a three year minimum mandatory term of incarceration, followed by six months probation. This is Cole's appeal from that sentence.
This was Cole's second VOP charge. The first VOP was withdrawn after the Department of Correction administratively transferred Cole to Level IV work release for a period of six months.
(2) Cole's counsel on appeal has filed a brief and a motion to withdraw pursuant to Rule 26(c). Cole's counsel asserts that, based upon a complete and careful examination of the record, there are no arguably appealable issues. By letter, Cole's attorney informed him of the provisions of Rule 26(c) and provided Cole with a copy of the motion to withdraw and the accompanying brief. Cole also was informed of his right to supplement his attorney's presentation. Cole has raised several issues for this Court's consideration. The State has responded to the position taken by Cole's counsel, as well as the points raised by Cole, 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) In his letter to counsel, Cole raises two identifiable concerns.
First, Cole contends that he should have appeared before his original sentencing judge for the hearing regarding his violation of boot camp conditions. Next, Cole asserts that his VOP sentence was excessive. We find no merit to either contention.
(5) Cole offers no support for his suggestion that only his original sentencing judge could hear and determine the VOP charge. There is no such procedural requirement, and we reject this contention.
(6) Furthermore, the three year minimum mandatory sentence imposed by the Superior Court was required by statute. Pursuant to 11 Del. C. § 6712(h), if the Superior Court finds that a defendant has violated any terms or conditions of boot camp supervision or probation, the court "shall impose not less than the full applicable Level V sentence mandated for the offense(s) of which the offender was convicted." Because Cole had been convicted of trafficking, which carries a three year minimum mandatory term, the Superior Court had no discretion and was required to impose the full three year term.
DEL. CODE ANN. tit. 11 Del. C. § 6712(h) (2001).
DEL. CODE ANN. tit. 16 Del. C. § 4753A(a)(2)a (2001).
(7) This Court has reviewed the record carefully and has concluded that Cole's appeal is wholly without merit and devoid of any arguably appealable issue. We also are satisfied that Cole's counsel has made a conscientious effort to examine the record and the law and has properly determined that Cole 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.