Submitted February 19, 2014
Case Closed April 1, 2014.
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 1101020846.
Before HOLLAND, JACOBS, and RIDGELY, Justices.
Henry duPont Ridgely, Justice
This 13th day of March 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, Derrick Smith, filed this appeal from the Superior Court's judgment denying his motion for postconviction relief. At the State's request, we remanded this matter for preparation of the transcript of Smith's guilty plea colloquy and the Superior Court's reconsideration of his motion for postconviction relief in light of the full record. On remand, the Superior Court granted Smith's motion for postconviction relief in part and determined that Smith should be resentenced. The matter has now been returned from remand.
(2) Smith's counsel on appeal has filed a brief and a motion to withdraw pursuant to Rule 26(c). Smith's counsel asserts that, based upon a complete and careful examination of the record, there are no arguably appealable issues. By letter, Smith's attorney informed him of the provisions of Rule 26(c) and provided Smith with a copy of the motion to withdraw and the accompanying brief. Smith also was informed of his right to supplement his attorney's presentation. Smith responded with points for the Court's consideration. The State has responded to Smith's points, as well as to the position taken by Smith'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, on January 29, 2011, Wilmington Police officers observed an apparent drug transaction. An officer confronted Smith and commanded him to stop. A footchase ensued. During the chase, Smith turned and fired a gun at the officer several times. Ultimately, the officer arrested and searched Smith. Officers found Smith to be in possession of marijuana, and recovered the gun from a nearby residence.
(5) A grand jury indicted Smith on one count each of Attempted Murder in the First Degree, Possession of a Firearm During the Commission of a Felony, Possession of a Firearm by a Person Prohibited, Resisting Arrest, and Possession of Marijuana. Smith pled guilty to PFDCF and Attempted Assault in the First Degree. The Superior Court sentenced Smith to twenty-five years at Level V incarceration on the PFDCF charge and to twenty-five years at Level V incarceration on the Attempted Assault in the First Degree charge, ...