Opinion
Case No. 0511019405.
Submitted: November 3, 2006.
Decided: February 5, 2007.
Upon Appeal from a Decision of the Court of Common Pleas. Affirmed.
Sean A. Motoyoshi, Esquire, Office of the Public Defender, Dover, Delaware; attorneys for the Appellant.
Stephen E. Smith, Esquire, Department of Justice, Dover, Delaware; attorneys for the Appellee.
ORDER
Defense Counsel, Sean A. Motoyoshi, filed a Motion to Withdraw as Counsel and an accompanying brief on behalf of Appellant Michele Reid pursuant to Sup reme Court Rule 26(c)as made applicable by Superior Court Criminal Rule 39(c). The Court has deferred ruling on Counsel's Motion to Withdraw pending the Court's inquiry under Rule 26(c) concerning Ms. Reid's appeal from the Court of Common Pleas.
The Court will review the record under a Rule26(c)inquiry to determine if appealable issues exist (discussed below).
Standard of Review
Superior Court Criminal Rule 39(c) allows for an appeal on the record to the Superior Court in accordance with Superior Court Civil Rules 72 and 72.1 so far as they are applicable to criminal cases and are not inconsistent with a statute or the Criminal Rules and/or with Supreme Court Rule 26 when appropriate. Supreme Court Rule 26(c) provides an avenue for trial counsel to file a motion to withdraw and an accompanying brief on behalf of their client when counsel believes that an appeal is wholly without merit. Pursuant to Rule 26(c), the Court then determines whether the appeal is wholly without merit on its face.Supreme Court Rule 26(c) (Appeals without merit) provides in relevant part: "If the trial attorney, after a conscientious examination of the record and the law, concludes that an appeal is wholly without merit, the attorney may file a motion to withdraw. Such motion shall be accompanied by the following: (i) Brief and appendix required . . . (ii) Attorney Statement . . . [and] (iii) Client response . . . The Court shall determine without oral argument, whether the appeal, on its face, is wholly without merit. If the Court so determines, the Court may order that the judgment below be affirmed. If the Court does not so determine, the motion for withdrawal may be granted . . ." Appellant's Rule 26(c)brief and appendix is presently before the Court. 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. Mr. Motoyoshi's Motion to Withdraw will be moot upon a finding that Counsel made a conscientious effort to examine the record and the law and properly determined that Defendant could not raise a meritorious claim on appeal. If this Court finds that the record fairly presents non-frivolous claims, then defense counsel should be permitted to withdraw and new counsel be appointed. The Court may also order that the judgment below be affirmed upon finding that the appeal, on its face, is wholly without merit.
Dickens v. State, 2000 WL 1011088, *1 (Del.Supr.) citing Penson v. Ohio, 488 U.S. 75, 83 (1988). Pursuant to the second prong of the Court's Rule 26(c) inquiry, the Court will review the record to determine if there are appealable issues present.
Anderson v. State, 2003 WL 22415993, *1 (Del.Supr.).
Drayton v. State, 2004 WL 2743529, *1 (Del.Supr.) citing Pension, 488 U.S. at 83.
Supreme Court Rule 26(c)(iii).
Court of Common Pleas Decision
Following a bench trial in the Court of Common Pleas ("CCP") on June 28, 2006, Ms. Reid was convicted of Driving Under the Influence of Alcohol and/or Drugs in violation of 21 Del. C. § 4177(a). Ms. Reid was also convicted of Driving on the Wrong Side of the Roadway in violation of 21 Del. C. § 4114(a) of the Delaware Code.Significant rulings by the lower court in Ms. Reid's case were the denial of Defendant's Motion to Suppress, the court's ruling that Ms. Reid was not placed under arrest when she voluntarily got into the police car and the court's finding beyond a reasonable doubt that Ms. Reid committed the charged offenses.
Discussion
On appeal to the Superior Court, Mr. Motoyoshi, Counsel for Ms. Reid, filed a Rule 26(c) Motion to Withdraw and an accompanying brief on behalf of his client, because it was appropriate under Criminal Rule 39(c). It was appropriate under the Superior Court Criminal Rule, because Mr. Motoyoshi's conscientiously examined the record and the law and concluded that an appeal was wholly without merit. Pursuant to Rule 26(c), Mr. Motoyoshi forwarded the properly formatted brief and Motion to Withdraw to Defendant Reid, so that the Defendant could inform Mr. Motoyoshi, within thirty days, of any points the Appellant wished this Court to consider on appeal. Ms. Reid failed to proffer any issues that she wished this Court to consider on appeal.
The Court is satisfied that Defense Counsel made a conscientious examination of the record and law when making his assessment.
In conducting its own review of the record under the second prong of the Rule 26(c) inquiry, this Court finds that no appealable issues exist in the case sub judice. First, the CCP did not abuse its discretion in denying Defendant's Motion to Suppress. After hearing testimony from Corporal Ryde and other State witnesses during the suppression hearing, the trial judge denied the Defendant's Motion to Suppress finding that the Officer had probable cause. The trial judge made numerous findings that led to the d enial of Def endant's motion including the moderate to strong odor of alcohol, the Defendant's driving and the nature of the accident itself, the admissions of Ms. Reid and the Defendant's actions at the scene. Substantial evidence existed on which the trial judge could base his denial. Therefore, the trial judge's decision denying the Suppression Motion would not be disturbed on appeal, because the lower Court did not abuse its discretion.
See DiSabitino v. State of Delaware, 808 A.2d 1216, 1221 (Del.Super. 2002).
Second, the lower court determined that the Defendant was not placed under arrest at the time she voluntarily got into the back of the patrol car, but rather after she became disorderly. The court found that Officer Ryde asked the Defendant if she wanted to sit in the back of the patrol car, because it was chilly outside. Ms. Reid accepted the offer. The trial judge determined, based on what was presented, that the Defendant should have had the understanding that she was free to get out of the car and move about, even though the car door may automatically lock. Further, Ms. Reid was not arrested until she became disorderly. The lower court did not abuse its discretion when deciding that Ms. Reid was not under arrest when she initially entered the patrol car. The decision would not be disturbed on appeal to this Court.
Finally, the lower court found beyond a reasonable doubt that Ms. Reid was guilty of Driving Under the Influence of Drugs and/or Alcohol and Driving on the Wrong Side of the Roadway. The CCP did not apply the law incorrectly in Ms. Reid's case, and there is substantial evidence to support the lower court's factual findings. The trial judge weighed the testimony of four (4) state witnesses and Ms. Reid, the only defense witness, in making his determination. The court determined that there were many factors that added up to the conclusion that the Defendant was driving under the influence, including: the Defendant's failure to negotiate a turn on a road she was familiar with; the Defendant's insistence on leaving the scene, even with a flat tire; Ms. Reid's own admissions to witnesses; Officer Ryde's observation that the Defendant smelled of alcohol; Ms. Reid's non-good faith effort to complete the intoxilyzer and the Defendant's combative behavior. Further, due to the nature of the accident, the court determined that it was quite evident that Ms. Reid was driving on the wrong side of the road. Substantial evidence existed to support the trial judge's factual findings. Further, the lower court properly applied its findings of fact to correct statements of law. Therefore, the Court of Common Pleas' decision would not be disturbed on appeal.
See Dickens v. State of Delaware, 2003 Del. Super. LEXIS 292, *9.
The Court agrees with Defense Counsel's assessment that an appeal is wholly without merit. Consequently, the Court orders the judgment of the Court of Common Pleas be affirmed pursuant to Rule 26(c). Based on the Court's ruling, Mr. Motoyoshi's Motion to Withdraw is deemed moot.
Based on the foregoing, the judgment of the Court of Common Pleas is affirmed, and Mr. Motoyoshi's Motion to Withdraw is moot.
IT IS SO ORDERED.