Submitted: May 30, 2017
Below-Superior Court of the State of Delaware Cr. ID No.
STRINE, Chief Justice; VALIHURA and VAUGHN, Justices.
L. VALIHURA JUSTICE.
7th day of August 2017, upon consideration of the
appellant's brief under Supreme Court Rule 26(c), his
trial counsel's motion to withdraw, and the State's
response, it appears to the Court that:
After a three-day trial in September 2016, a Superior Court
jury found the appellant, David Mize, guilty of Driving Under
the Influence ("DUI"), Resisting Arrest, and
Improper Lane Change. For the DUI conviction, Mize was
sentenced, on December 2, 2016, to five years at Level V
suspended after six months and successful completion of the
Key Program for decreasing levels of supervision. Mize
received a suspended sentence for Resisting Arrest and was
fined twenty-five dollars for Improper Lane Change. This is
Mize's direct appeal.
appeal, Mize's defense counsel has filed a Rule 26(c)
brief and motion to withdraw asserting that there are no
arguably appealable issues. Mize has responded to his
counsel's presentation with a written submission listing
twenty-three points for the Court's consideration. The
State has responded to the position taken by counsel, the
points raised by Mize, and has moved to affirm the Superior
standard and scope of review applicable to the consideration
of a Rule 26(c) brief and an accompanying motion to withdraw
is twofold. First, the Court must be satisfied that the
appellant's counsel has made a conscientious examination
of the record and the law for claims that could arguably
support the appeal. Second, the Court must conduct its own
review of the record to determine whether the appeal is so
totally devoid of at least arguably appealable issues that it
can be decided without an adversary
evidence at trial reflects that, at about 9:00 p.m. on
December 10, 2015, a concerned citizen called 911 to report a
white GMC pickup truck swerving in and out of the northbound
lanes of Route 1 near the Nassau Bridge in Lewes, Delaware.
Corporal Michael Venero of the Delaware State Police was in
the area and heard the dispatch to be on the lookout for a
possible intoxicated driver. Corporal Venero saw the truck
traveling northbound on Route 1 and began following it. After
observing the truck changing lanes without signaling and
swerving between the two northbound lanes, Corporal Venero
pulled the truck over without incident.
When approaching the driver's side window of the truck,
Corporal Venero saw three men sitting shoulder to shoulder.
Mize was in the driver's seat, smoking a cigarette;
Mize's son Jake, was seated in the middle, and the third
man, William Webb, was sitting next to the passenger's
window. Corporal Venero detective a strong odor of alcohol
coming from Mize and noticed that his eyes appeared red and
vehicle stop did not end well for Mize. First, Mize did not
cooperate with Corporal Venero during the stop and performed
poorly on the field sobriety tests the officer administered.
Then, to make matters worse, when Corporal Venero decided he
would have to detain Mize to keep him from leaving the scene,
Mize resisted, which caused Corporal Venero to perform a
maneuver that took Mize to the ground. Eventually, with the
assistance of a second officer who had arrived as backup,
Corporal Venero was able to handcuff Mize, and the two
officers carried Mize to the patrol vehicle and put him
With Mize in the back of the patrol vehicle, Corporal Venero
took an inventory of the materials in the truck with the
assistance of Mize's son, Jake. During the inventory,
Jake told Corporal Venero that he, Jake, might have been
driving the vehicle when it was stopped.
After inventorying the truck, Corporal Venero obtained a
warrant and transported Mize to Beebe Hospital where
Mize's blood was drawn. Mize's blood alcohol content
was 0.12, in excess of the legal limit of 0.08.
summarized in the Rule 26(c) brief, Mize's defense at
trial was that he was not the driver ...