Opinion
No. 284, 2000.
Submitted: December 21, 2000.
Decided: January 18, 2001.
Court Below — Superior Court of the State of Delaware, in and for New Castle County, Cr.A. Nos. IN99-02-0053, 0054, 0055, 0058.
Before VEASEY, Chief Justice, WALSH and HOLLAND, Justices.
ORDER
This 18th day of January 2001, 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, Nugi Nichols, was found guilty by a Superior Court jury of attempted murder, possession of a firearm during the commission of a felony, conspiracy and possession of a deadly weapon by a person prohibited. On the attempted murder conviction, he was sentenced to 25 years incarceration at Level V. On the conviction for possession of a firearm during the commission of a felony, he was sentenced to 5 years incarceration at Level V. On the conspiracy conviction, he was sentenced to 3 years incarceration at Level V, to be suspended for 3 years at Level IV, to be further suspended after 6 months for 2 years and 6 months at Level III. On the conviction for possession of a deadly weapon by a person prohibited, he was sentenced to 21 months incarceration at Level V, to be suspended for 21 months at Level II. This is Nichols' direct appeal of his convictions and sentences.
(2) Nichols' trial counsel has filed a brief and a motion to withdraw pursuant to Supreme Court 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 could arguably 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).
(3) Nichols' counsel asserts that, based upon a careful and complete examination of the record, there are no arguably appealable issues. By letter, Nichols' counsel informed Nichols 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. Nichols was also informed of his right to supplement his attorney's presentation. In response, Nichols raises two issues for this Court's consideration. The State has responded to the position taken by Nichols' counsel as well as the issues raised by Nichols and has moved to affirm the Superior Court's judgment.
(4) Nichols raises two issues for this Court's consideration. He claims that: i) the State's witnesses were not credible; and ii) there was insufficient evidence to sustain his conviction. Based upon our review of the record in this case, we conclude that Nichols' claims are without merit.
(5) It is well-settled that the trier of fact is the sole judge of witness credibility and is responsible for resolving any conflicts in the testimony of witnesses. Here, the State presented the testimony of three eyewitnesses, including the victim, all of whom personally knew the defendant and who identified him as one of two men who entered the victim's bedroom, beat her with a baseball bat and shot her. Nichols presented an alibi defense through the testimony of his girlfriend, who stated that Nichols was with her at the time the crime was committed. The jury, as the trier of fact, chose to believe the testimony of the prosecution's three eyewitnesses rather than the testimony of Nichols' girlfriend and their judgment will not be disturbed by this Court.
Chao v. State, Del. Supr., 604 A.2d 1351, 1363 (1992).
Chao v. State, 604 A.2d at 1363.
(6) Nichols' claim that there was insufficient evidence to sustain his conviction is equally unavailing. The standard of appellate review on a claim of insufficient evidence is "whether any rational trier of fact, viewing the evidence in a light most favorable to the [prosecution]', could have found the essential elements of the charged offense beyond a reasonable doubt." Here, the State presented the testimony of three eyewitnesses that Nichols and a co-defendant were the perpetrators of the crime. This evidence was more than sufficient to support a conviction.
Morrisey v. State, Del. Supr., 620 A.2d 207, 213 (1993) (quoting Robertson v. State, Del. Supr., 596 A.2d 1345, 1355 (1991)).
(7) This Court has reviewed the record carefully and has concluded that Nichols' appeal is wholly without merit and devoid of any arguably appealable issue. We are also satisfied that Nichols' counsel has made a conscientious effort to examine the record and has properly determined that Nichols 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.
BY THE COURT:
/s/ Joseph T. Walsh Justice