Opinion
No. 121, 2006.
Submitted: May 10, 2006.
Decided: July 6, 2006.
Superior Court of the State of Delaware in and for Kent County, Cr. ID Nos. 0408002660, 0408009977, 0409003817.
Before STEELE, Chief Justice, HOLLAND and BERGER, Justices.
ORDER
This sixth day of July 2006, 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, George R. Goodlett, pleaded guilty to Burglary in the Third Degree, Assault in the Third Degree, Misdemeanor Criminal Mischief, and Misdemeanor Non-Compliance with Conditions of Bond. He was sentenced to three years of Level V imprisonment on the burglary conviction and was sentenced on the remaining convictions to a total of one year and thirty days at Level V, to be suspended for six months of probation and a $100 fine. This is Goodlett's direct appeal.
(2) The record reflects that, while the State initially had petitioned the Superior Court to sentence Goodlett as a habitual offender on the burglary conviction, it withdrew the petition prior to sentencing. After the Superior Court mistakenly sentenced Goodlett as a habitual offender to four years at Level V on the burglary conviction, Goodlett's counsel filed a motion to amend the sentence. The Superior Court granted the motion and, on October 20, 2005, issued a modified sentencing order that imposed three years of Level V incarceration, the statutory maximum sentence for conviction of the Class F felony of Burglary in the Third Degree.
Del. Code Ann. tit. 11, §§ 824 and 4205(b) (6).
(3) Goodlett'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 arguably could 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) Goodlett's counsel asserts that, based upon a careful and complete examination of the record, there are no arguably appealable issues. By letter, Goodlett's counsel informed Goodlett 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 transcript. Goodlett also was informed of his right to supplement his attorney's presentation. Goodlett responded with a brief that raises two issues for this Court's consideration. The State has responded to the position taken by Goodlett as well as the issues raised by Goodlett and has moved to affirm the Superior Court's judgment.
(5) Goodlett raises two issues for this Court's consideration. He claims that: a) he should not have been sentenced as a habitual offender; and b) his sentence does not include a 6-month transition period, as required by Del. Code Ann. tit. 11, § 4204(l).
(6) Relief is available under Rule 35(a) only when the sentence imposed exceeds the statutorily authorized limits, violates double jeopardy, is ambiguous with respect to the time and manner in which it is to be served, is internally contradictory, omits a term required to be imposed by statute, is uncertain as to its substance, or is a sentence that the judgment of conviction did not authorize. As a general rule, appellate review of criminal sentences in Delaware is limited to a determination of whether the sentence exceeds the statutory limits.
Brittingham v. State, 705 A.2d 577, 578 (Del. 1998).
Mayes v. State, 604 A.2d 839, 842 (Del. 1992).
(7) Goodlett's claim that he should not have been sentenced as a habitual offender is moot since the Superior Court issued a modified sentencing order vacating his habitual offender sentence. Moreover, because Goodlett's burglary sentence is within the statutory limits, there is no basis for relief pursuant to Rule 35(a).
(8) Goodlett's second claim is that his sentence does not contain the 6-month transition period mandated by Delaware law. While Goodlett is correct that his burglary sentence contains no post-imprisonment supervision, his assault sentence has a three-month probationary period and his criminal mischief sentence has an additional three-month probationary period, albeit at supervision Level I. We conclude that Goodlett's sentence fulfills the intent of the six-month transition period mandated by Delaware law and, therefore, find that this claim, too, is without merit.
(9) This Court has reviewed the record carefully and has concluded that Goodlett's appeal is wholly without merit and devoid of any arguably appealable issue. We also are satisfied that Goodlett's counsel has made a conscientious effort to examine the record and has properly determined that Goodlett 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.