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Mize v. State

Supreme Court of Delaware

August 7, 2017

DAVID MIZE, Defendant Below, Appellant,
v.
STATE OF DELAWARE, Plaintiff Below, Appellee.

          Submitted: May 30, 2017

         Court Below-Superior Court of the State of Delaware Cr. ID No. 1512007279 (S)

          Before STRINE, Chief Justice; VALIHURA and VAUGHN, Justices.

          ORDER

          KAREN L. VALIHURA JUSTICE.

         This 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:

         (1) 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.

          (2) On 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 Court's judgment.

         (3) The 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.[1] 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 presentation.[2]

         (4) The 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.

         (5) 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 glassy.

         (6) The 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 inside.

         (7) 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.

         (8) 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.[3]

         (9) As summarized in the Rule 26(c) brief, Mize's defense at trial was that he was not the driver ...


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