Submitted: Nov. 15, 2013.
This decision has been designated as "Table of Decisions Without Published Opinions." in the Atlantic Reporter.
Court Below— Superior Court of the State of Delaware, in and for New Castle County, Cr. ID 1001009884.
Before HOLLAND, BERGER, and RIDGELY, Justices.
RANDY J. HOLLAND, Justice.
This 14th day of January 2014, 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, Rashaun Miller, was convicted in 2010 of one count each of Possession with Intent to Deliver Heroin and Possession of a Firearm During the Commission of a Felony. The Superior Court sentenced Miller to a total period of fifteen years at Level V incarceration to be suspended after serving ten years for decreasing levels of supervision. This Court affirmed Miller's convictions and sentence on direct appeal. Thereafter, Miller filed a motion for postconviction relief asserting that both his trial counsel and appellate counsel were constitutionally ineffective. The Superior Court denied Miller's motion. This appeal followed.
(2) Miller's appointed counsel on appeal has filed a brief and a motion to withdraw pursuant to Rule 26(c). Miller's counsel asserts that, based upon a complete and careful examination of the record, there are no arguably appealable issues. bye letter, Miller's attorney informed him of the provisions of Rule 26(c) and provided Miller with a copy of the motion to withdraw and the accompanying brief. Miller also was informed of his right to supplement his attorney's presentation. Miller filed several points for this Court's consideration. The State has responded to Miller's points, as well as to the position taken by Miller's counsel, and has moved to affirm the Superior Court's judgment.
(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, in January 2010, police officers with the Governor's Task Force received information from a cooperating individual (CI), who was not a past-proven reliable source of information, about a drug transaction scheduled to occur on January 14, 2010 between 11:00 AM and 1:00 PM in the parking lot of the Town Court Compton Townhouses in Wilmington. The CI informed officers that two young, black men, one nicknamed " O," would back into one of four identified parking spaces. The officers set up surveillance in the area. Around 11:38 AM, they observed a 2003 Infinity G35 back into one of the four parking spaces specified by the informant. Officers simultaneously confirmed with the CI, who was watching nearby and was on a cell phone, that the Infinity observed by officers was the correct vehicle. When the officers pulled into the lot and blocked the Infinity's egress, the two occupants of the car attempted to flee on foot. Officers observed what appeared to be a large quantity of drugs and a handgun in plain view through the open driver's side door. The two occupants were quickly apprehended.
(5) Miller, the driver, and his codefendant, Tavar Smith, were arrested. Miller was charged with eight criminal offenses, including Trafficking in Heroin. Miller filed a motion to suppress in June 2010, which the Superior Court denied. In order to preserve his right to appeal the denial of his suppression motion, Miller agreed to a stipulated bench trial. In exchange for Miller's waiver of his right to a jury trial and his stipulation to the facts established at the suppression hearing, the State agreed to dismiss all but two charges against Miller and to recommend a sentence of ten years in prison. On direct appeal, this Court affirmed Miller's convictions finding that the CI's tip was sufficiently reliable to establish reasonable suspicion of criminal activity to justify Miller's seizure.
(6) In October 2011, Miller filed a motion for postconviction relief, which he later was permitted to amend. Miller argued that both his trial counsel and his appellate counsel were ineffective. Specifically, Miller asserted that trial counsel was ineffective because she: (i) failed to challenge the officers' reliance on an uncorroborated tip; (ii) failed to challenge his warrantless seizure and arrest for lack of probable cause; (iii) failed to challenge the lack of exigent circumstances for the warrantless search of his vehicle; (iv) failed to file a speedy trial motion; (v) failed to file a " Franks" motion; (vi) failed to file a " Flowers" motion; (vii) failed to adequately cross-examine the arresting officer at the suppression hearing; (viii) failed to timely provide Miller with a copy of the suppression hearing transcript; and (ix) failed to challenge his conviction on a charge to which his codefendant previously had pled guilty. Miller also argued that his appellate counsel was ineffective for failing to challenge alleged misstatements by the Court in its opinion on Miller's direct appeal. After obtaining responses from Miller's trial counsel and appellate counsel, as well as from counsel for the State, the Superior Court Commissioner recommended that Miller's motion be denied. The Superior Court adopted the Commissioner's report and recommendation and denied postconviction relief on April 24, 2013. This appeal followed.
(7) Miller enumerates two arguments for this Court's consideration on appeal. First, he contends that the Superior Court erred in denying his motion for postconviction relief and related motions. Second, Miller asserts that both his trial counsel and appellate ...