Opinion
No. 407, 2001
Decided: February 13, 2002
Court Below-Superior Court of the State of Delaware, in and for New Castle County Cr. ID No. 9710012477
Affirmed.
Unpublished opinion is below.
PHILLIP HAINES, Defendant Below-Appellant, v. STATE OF DELAWARE, Plaintiff Below-Appellee. No. 407, 2001 In the Supreme Court of the State of Delaware. Submitted: January 4, 2002 Decided: February 13, 2002
Before HOLLAND, BERGER, and STEELE, Justices.
Carolyn Berger, Justice:
ORDER
This 13th day of February 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) In May 1998, the defendant-appellant Phillip Haines pled guilty to trafficking in cocaine. Although convicted in 1998, the Superior Court deferred sentencing on Haines's conviction, pursuant to 11 Del. C. § 6712(d), and Haines was diverted to the first offender's boot camp program, consisting of at least six months at a boot camp facility followed by two and a half years of probation supervision. Haines completed boot camp but subsequently violated the terms of his probation by committing new criminal charges. Haines's violation of probation resulted in the imposition of a three-year minimum mandatory sentence for his 1998 trafficking conviction.
This appeal ensued.
(2) Haines's counsel on appeal has filed a brief and a motion to withdraw pursuant to Rule 26(c). Haines's counsel asserts that, based upon a complete and careful examination of the record, there are no arguably appealable issues. By letter, Haines's attorney informed him of the provisions of Rule 26(c) and provided Haines with a copy of the motion to withdraw and the accompanying brief. Haines also was informed of his right to supplement his attorney's presentation. Haines has raised two issues for this Court's consideration. The State has responded to the position taken by Haines's counsel as well as the points raised by Haines 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) Haines has raised two issues for this Court to consider. First, Haines contends that he is entitled to seven months' credit against his three year minimum mandatory sentence for the time he already served at boot camp. Second, Haines contends that the probationary period on the Superior Court's original 1998 deferred sentencing order should have expired June 21, 2001. Haines therefore contends that it was improper for the State to charge him with a violation of probation on June 25, 2001.
(5) With respect to Haines's first argument, it is settled law that a defendant whose sentencing is deferred pursuant to 11 Del. C. § 6712(d) may not receive credit for time served at boot camp. Section 6712(h) specifically provides that a defendant shall not be given credit for time served at boot camp. Accordingly, this first claim is without merit.
Whitner v. State, 762 A.2d 18, 19 (Del. 2000).
(6) Haines next contends that he had completed his probation supervision at the time he was charged with a violation of probation. The record reflects, however, that Haines's conduct leading to the VOP report occurred on May 10, 2001 when a search warrant of Haines's home was executed on that date and officers discovered cocaine and over $6000 in cash. So long as the violation occurred during the probationary period, which it did in Haines's case, it is of no consequence that the VOP report was filed after the probationary period expired.
See Tiller v. State, 257 A.2d 385 (Del. 1969).
(7) This Court has reviewed the record carefully and has concluded that Haines's appeal is wholly without merit and devoid of any arguably appealable issue. We also are satisfied that Haines's counsel has made a conscientious effort to examine the record and the law and has properly determined that Haines 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.