LUIS M. CLARK, Defendant Below-Appellant,
STATE OF DELAWARE, Plaintiff Below-Appellee
Submitted August 28, 2014.
Case Closed November 6, 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 Kent County. Cr. ID 1207014755.
Before HOLLAND, RIDGELY, and VALIHURA, Justices.
Randy J. Holland, Justice.
This 21st day of October, 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) On February 20, 2014, a Superior Court jury found the defendant-appellant, Luis Clark, guilty of Possession of a Firearm by a Person Prohibited, Possession of a Firearm During the Commission of a Felony, Assault in the Second Degree, and Reckless Endangering in the First Degree. The Superior Court sentenced Clark as a habitual offender on each conviction and imposed a total sentence of forty-six years at Level V imprisonment followed by one year of probation. This is Clark's direct appeal.
(2) Clark's counsel on appeal has filed a brief and a motion to withdraw under Rule 26(c). Clark's counsel asserts that, based upon a complete and careful examination of the record, there are no arguably appealable issues. By letter, Clark's attorney informed him of the provisions of Rule 26(c) and provided Clark with a copy of the motion to withdraw and the accompanying brief. Clark also was informed of his right to supplement his attorney's presentation.
(3) In response to his counsel's motion and brief, Clark raised several issues for this Court's consideration. First, he contends that the prosecutor engaged in misconduct. Second, he asserts that his trial counsel was ineffective. Third, he contends that the complaining witness' testimony was not credible. Finally, he contends that the Superior Court erred by failing to ensure that Clark understood his counsel's stipulation allowing a DNA report into evidence without requiring the State to produce an expert witness to testify. The State has responded to Clark's points, as well as to the position taken by Clark's counsel, and has moved to affirm the Superior Court's judgment.
(4) 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.
(5) The evidence presented by the State at trial reflects the following version of events: On July 17, 2012, the victim, Oscar Ventura, his girlfriend and three children were in a Mazda minivan. Ventura parked the minivan in a handicapped parking space in front of their apartment building so that his girlfriend could return to their apartment to retrieve their dirty laundry, which they were planning to take to the laundromat. Their neighbor, Luis Clark, made a derogatory comment about Ventura parking in the handicapped spot. Ventura told his girlfriend he was going to " whoop [Clark's] ass," but his girlfriend told him not to engage Clark.
(6) After his girlfriend left the vehicle to return to their apartment, Ventura testified that he saw Clark approaching the driver's side door from the rear of his vehicle in a " tactical," " crouching" position with a silver gun in his hand. Ventura grabbed a taser, which was attached to a set of brass knuckles, from his center console. As he opened the driver's side door, he pushed Clark backwards. The two engaged in a physical fight. Ventura testified that Clark began hitting him in the face with the gun. During the struggle, the gun discharged and struck the driver's side door ...