Opinion
No. 240, 2003.
Submitted: January 9, 2004.
Decided: March 19, 2004.
Superior Court of the State of Delaware, in and for New Castle County, Cr.A. Nos. IN02-08-1657, -1658, and -1660, Cr. ID 0208012184.
Before BERGER, STEELE, and JACOBS, Justices.
ORDER
This 19th day of March 2004, upon consideration of the appellant's Supreme Court Rule 26(c) brief, his attorney's motion to withdraw, the State's response thereto, and the parties' supplemental memoranda, it appears to the Court that:
(1) This is appellant Thomas Graham's direct appeal following his sentencing on charges of aggravated menacing, possession of a deadly weapon during the commission of a felony (PDWDCF), and sexual harassment. Graham's counsel on appeal filed a brief and a motion to withdraw pursuant to Rule 26(c). Graham's counsel asserted that, based upon a complete and careful examination of the record, there are no arguably appealable issues. By letter, Graham's attorney informed him of the provisions of Rule 26(c) and provided Graham with a copy of the motion to withdraw and the accompanying brief. Graham also was informed of his right to supplement his attorney's presentation. Graham did not raise any issues for this Court's consideration. The State responded to the position taken by Graham's counsel and moved to affirm the Superior Court's judgment. After initially considering Graham's opening brief and the State's response, the Court requested the parties to file supplemental memoranda addressing whether Graham's aggravated menacing and PDWDCF charges should merge and to what extent, if any, this Court's recent opinion in Poteat v. State applies to Graham's case.
Poteat v. State, 840 A.2d 599 (Del. 2003).
(2) 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).
(3) The testimony presented at trial fairly supports the following version of events. On August 16, 2002, Melissa Napier was tending a stall at a flea market. Her young son was sleeping nearby. A man, later identified as Graham, approached Napier and asked if he could buy her a drink. Napier declined, saying that she was married with children. Graham persisted, describing his genitalia and telling Napier that he wanted to have sex with her. Graham did not leave until Napier's stepdaughter arrived. Napier's mother also arrived a few minutes later. Napier and her mother went to find Napier's fiancée, Virgilio Fana, who was working at the flea market. The three split up and searched the flea market looking for Graham.
(4) Napier spotted Graham near an electronics store. She and her mother confronted him. Graham apologized for his behavior and left the flea market. Napier's mother continued to follow him and tried to detain him until the police arrived. Fana and a security guard from the flea market caught up with Napier's mother and Graham in the flea market parking lot. They continued to follow Graham across the parking lot of the flea market and into the parking lot of a nearby business. Fana was closest to Graham when Graham pulled out a knife. Upon the arrival of the police, Graham threw the knife in some bushes, where police later recovered it.
(5) The grand jury indicted Graham on charges of aggravated menacing, possession of a deadly weapon during the commission of a felony, shoplifting, and sexual harassment. The shoplifting charge was dismissed. The jury convicted Graham of the remaining charges. The Superior Court sentenced Graham to a total period of seven years and 30 days at level V incarceration, to be suspended after serving three and a half years in prison for decreasing levels of supervision. This appeal followed.
(6) Although Graham did not raise any issues for the Court's consideration on appeal, we directed counsel for the parties to address whether Graham's convictions for aggravated menacing and PDWDCF should be merged and the extent, if any, to which the Court's recent opinion in Poteat v. State applied to Graham's case. In his supplemental memorandum, defense counsel argues that Graham's PDWDCF conviction should be merged into his aggravated menacing conviction in accordance with the reasoning of Poteat v. State. Graham's counsel asserts that the elements of the PDWDCF charge are included within the aggravated menacing charge. The State, however, argues that Poteat has no application to this case and that the issue of merger is controlled by this Court's decision in LeCompte v. State. The State contends that the language and the focus of the aggravating menacing statute and PDWDCF statute make it clear that the legislature intended the two offenses to lead to cumulative sentences.
840 A.2d 599 (Del. 2003) (ordering the defendant's convictions for aggravated menacing and possession of a firearm during the commission of a felony to be merged with his conviction for first degree robbery).
516 A.2d 898 (Del. 1986).
(7) As a general rule, multiple punishments "are not imposed for two offenses arising out of the same occurrence unless each offense requires proof of a fact which the other does not." This general rule is based on the assumption that the legislature ordinarily does not intend to punish the same offense under two different statutes. The general rule does not apply, however, when there is "clear legislative intent" to require multiple punishments for the same offense.
Whalen v. United States, 445 U.S. 684, 691-92 (1980).
LeCompte v. State, 516 A.2d at 900.
(8) The statute defining PDWDCF, 11 Del. C. § 1447(a), provides that "[a] person who is in possession of a deadly weapon during the commission of a felony is guilty of possession of a deadly weapon during the commission of a felony." Section 1447(c) provides, in part, that "[i]n any instance where a person is convicted of a felony, together with a conviction for the possession of a deadly weapon during the commission of such felony, such person shall serve the sentence for the felony itself before beginning the sentence imposed for possession of a deadly weapon during such felony."
(9) In Graham's case, the aggravated menacing charge was the felony that formed the basis of the PDWDCF charge. The statute defining aggravated menacing, 11 Del. C. § 602(b), declares that "[a] person is guilty of aggravated menacing when by displaying what appears to be a deadly weapon that person intentionally places another person in fear of imminent physical injury."
(10) The issue presented in LeCompte v. State was whether consecutive sentences for PDWDCF and first degree robbery were permissible. We found two bases to support the conclusion that the General Assembly intended to require the imposition of consecutive sentences upon a defendant's conviction for PDWDCF and first degree robbery. First, we found the language of Section 1447(c) — requiring the defendant to serve his sentence for the underlying felony prior to the sentence for PDWDCF — to be an unambiguous expression of the General Assembly's intent to require multiple punishments. Second, we noted that the first degree robbery and PDWDCF statutes had a different focus and emphasis, thus further demonstrating "a legislative intent that these two separate offenses give rise to cumulative sentencing."
516 A.2d 898 (Del. 1986).
Id. at 902.
Id. at 903.
(11) In Graham's case, we are unable to conclude, as we did in LeCompte v. State, that Section 1447(c) reflects an unambiguous expression of legislative intent to impose cumulative sentences for PDWDCF and a related charge of aggravated menacing. The aggravated menacing statute was not enacted until 1995, many years after the adoption of Section 1447(c). Although Section 1447(c) generally permits cumulative sentencing for PDWDCF and an underlying felony, we find no evidence that the General Assembly specifically considered the import of Section 1447(c) when it enacted the aggravated menacing statute. Accordingly, we cannot conclude that the earlier-enacted Section 1447(c) provides a clear expression of legislative intent to allow cumulative sentencing when the underlying felony is aggravated menacing.
(12) Notwithstanding this conclusion, we do find evidence of legislative intent to permit cumulative sentencing for aggravated menacing and PDWDCF in the synopsis to the bill adopting the aggravating menacing statute. That synopsis provides:
This bill will close a loophole in Delaware's criminal law. Currently, it is difficult to convict individuals who unlawfully threaten another with a gun of Reckless Endangering because in order to do so the State may have to prove that the gun was loaded. Unless the gun is fired or the police recover the gun, the State may be unable to do so. This bill will remove the necessity of proving that a gun used to criminally menace another was loaded. The wording of the bill is similar to our already-existing Menacing statute (11 Del. C. § 602).
(13) The synopsis reflects the legislature's intent to elevate the misdemeanor crime of menacing to the felony crime of aggravated menacing if a defendant displays what appears to be a deadly weapon (even if it turns out not to be a deadly weapon). The bill eliminated the need for the State to prove that the displayed weapon, in fact, created a substantial risk of death (an element of felony reckless endangering) in order to convict the defendant of a felony-level crime.
(14) Thus, as we also concluded with the respect to the first degree robbery statute in LeCompte, the focus of the aggravated menacing statute is on the victim's perception of the threat rather than on the actual risk of danger. The PDWDCF statute, on the other hand, is "designed to deter the possession of a deadly weapon during a felony, and thus obviate the enhanced danger thereby posed to the victim." The PDWDCF statute does not require that the victim even be aware that the defendant possesses a deadly weapon.
LeCompte v. State, 516 A.2d at 902.
(15) Given the focus and language of the aggravated menacing statute, which parallels the first degree robbery statute, we find the holding in LeCompte persuasive. Furthermore, our holding in Poteat v. State — that aggravated menacing is a lesser included offense of first degree robbery — buttresses the conclusion that aggravated menacing and PDWDCF were intended to be separately sentenced. To conclude otherwise would lead to the illogical result of permitting cumulative sentences for PDWDCF and first degree robbery while prohibiting cumulative sentences for PDWDCF and aggravated menacing, a lesser included offense to first degree robbery.
840 A.2d 599 (Del. 2003).
(16) This Court has reviewed the record carefully and has concluded that Graham's appeal is wholly without merit and devoid of any arguably appealable issue. We also are satisfied that Graham's counsel has made a conscientious effort to examine the record and the law and has properly determined that Graham 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.