Opinion
No. 11, 2003.
Submitted: July 1, 2003.
Decided: July 28, 2003.
Court Below-Superior Court of the State of Delaware, in and for New Castle County Cr.A. Nos. IN01-09-0986 and -0987 Cr. ID 0109001783
Affirmed.
Unpublished opinion is below.
DANA WILLIAMS, Defendant Below-Appellant, v. STATE OF DELAWARE, Plaintiff Below-Appellee. No. 11, 2003. Supreme Court of Delaware. Submitted: July 1, 2003. Decided: July 28, 2003.
Before VEASEY, Chief Justice, HOLLAND, and BERGER, Justices.
ORDER
Randy J. Holland, Justice
This 28th day of July 2003, 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) The defendant-appellant, Dana Williams, was convicted following a bench trial of assault in a detention facility and criminal mischief. The Superior Court sentenced Williams to a total period of three years and thirty days incarceration, to be suspended after a one-year minimum mandatory term for probation. This is Williams' direct appeal.
(2) Williams' counsel on appeal has filed a brief and a motion to withdraw pursuant to Rule 26(c). Williams' counsel asserts that, based upon a complete and careful examination of the record, there are no arguably appealable issues. By letter, Williams' attorney informed him of the provisions of Rule 26(c) and provided Williams with a copy of the motion to withdraw and the accompanying brief. Williams also was informed of his right to supplement his attorney's presentation. Williams did not raise any issues in writing for this Court's consideration. His counsel, however, indicates that he spoke to Williams about the appeal, and Williams orally expressed his concern that a change in his appointed counsel occurred during his case. The State has responded to the position taken by Williams' counsel, as well as to Williams' concern about his counsel, 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.
(4) The record reflects that, following Williams' arraignment, his public defender filed a letter with the Superior Court indicating that the public defender's office had a conflict. The Superior Court initially appointed substitute counsel but later determined that the public defender's office, in fact, had no current conflict in Williams' case. Ultimately, after substitute counsel filed a letter indicating she had a conflict in the case, the public defender re-appeared and tried the case on Williams' behalf.
(5) Although an indigent defendant has a Sixth Amendment right to the effective assistance of counsel, and trial judges ordinarily must recognize a presumption in favor of defendant's counsel of choice, there is no absolute right to the counsel of defendant's choice. Given Williams' failure to support his complaint in writing with specific allegations of prejudice, despite being given the opportunity to do so, we find no error on the face of the record in the Superior Court's re-appointment of the public defender to represent Williams' in this case. To the extent that Williams' complaint can be construed as an allegation that his counsel was ineffective due to a conflict, this Court generally will not consider claims of ineffective assistance of counsel raised for the first time on direct appeal.
(6) This Court has reviewed the record carefully and has concluded that Williams' appeal is wholly without merit and devoid of any arguably appealable issue. We also are satisfied that Williams' counsel has made a conscientious effort to examine the record and the law and has properly determined that Williams could not raise a meritorious claim in this appeal.
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).
Lewis v. State, 757 A.2d 709, 710 (Del. 2000).
Wheat v. United States, 486 U.S. 153, 166 (1988).
See Lewis v. State, 757 A.2d at 712.
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.