Submitted February 12, 2014.
Motion for Rehearing filed 4/28/14; Denied 5/1/14. Case Closed May 2, 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 Sussex County. Cr. ID No. 1301016588.
Before HOLLAND, JACOBS and RIDGELY, Justices.
Henry duPont Ridgely, Justice.
This 16th day of April 2014, upon careful consideration of the appellant's brief pursuant to Supreme Court Rule 26(c) (" Rule 26(c)" ), his attorney's motion to withdraw, and the State's response, it appears to the Court that:
(1) After a two-day trial in July 2013, a Superior Court jury convicted the appellant, Gerald Masarone, of Driving Under the Influence (" DUI" ). It was Masarone's seventh DUI offense. After a presentence investigation, the Superior Court sentenced Masarone on September 12, 2013, to fifteen years at Level V suspended after seven years and successful completion of the Greentree Program for six months at Level IV work release followed by two years of Level III probation. This is Masarone's direct appeal.
(2) Masarone's appellate counsel, (hereinafter " Counsel" ), has filed a Rule 26(c) brief and motion to withdraw asserting that there are no arguably appealable issues. Masarone has responded to his Counsel's presentation with a written submission that raises one issue for the Court's consideration. The State has responded to the position taken by Counsel as well as the issue raised by Masarone and has moved to affirm the Superior Court's judgment.
(3) The record reflects that on January 22, 2013, police officers in the vicinity of the Indian River Inlet Bridge received a general broadcast of a silver pick up truck swerving in and out of the southbound lane of Route 1. Corporal John Jenney of the Dewey Beach Police and Trooper Lindsay Coleman of the Delaware State Police located the truck, a Ford FX, just south of the Indian River Inlet Bridge where the truck had stopped. Trooper Joshua Rowley of the Delaware State Police and Lieutenant Richard Haden of the Bethany Beach Police also responded to the scene.
(4) Corporal Jenney found the operator of the truck, Masarone, slumped over the steering wheel, passed out, with the truck still in drive and his foot resting on the brake. Corporal Jenney, with the assistance of Trooper Coleman, roused Masarone with some difficulty and coaxed him out of the truck. When Trooper Rowley arrived on the scene, Masarone was seated in the back seat of Lieutenant Haden's patrol car, which was equipped with a dash camera.
(5) At trial, Corporal Jenney and Troopers Coleman and Rowley all testified that Masarone could not stand up without assistance, smelled strongly of alcohol, and was incoherent, and each officer opined that Masarone was under the influence of alcohol. Trooper Rowley testified that, after administering the alphabet and counting field sobriety tests, which Masarone failed, he opted not to attempt any physical field tests because Masarone could not stand up. Trooper Rowley also testified that, after he took Masarone into custody and was transporting him to the Sussex Correctional Institution, ...