JASON J. GAINER, Defendant Below, Appellant.
STATE OF DELAWARE, Plaintiff Below, Appellee.
Submitted: June 19, 2019
consideration of the no-merit brief and motion to withdraw
filed by appellant's counsel,  the State's response,
and the Superior Court record, it appears to the Court that:
October 10, 2018, a Court of Common Pleas ("CCP")
jury found Jason J. Gainer ("appellant") guilty of
criminal contempt of a Protection from Abuse
("PFA") order and resisting arrest. The presiding
Judge sentenced him on the resisting arrest conviction to 1
year at Level 5, with credit for 37 days served, and the
balance suspended for 9 months of Level 3 probation, and on
the criminal contempt of a PFA conviction to 1 year at Level
5 suspended for 9 months of probation at Level 3. The
probations are to run concurrently.
evidence presented at the trial established the following.
April 26, 2018, Family Court issued a PFA against appellant
on behalf of his minor child, Mary Jones. The order
prevented him from having contact with Mary except as
permitted by a Family Court visitation/custody order.
Appellant was present in the courtroom when Family Court
entered that order; thus, he had actual notice of that
who was nine-years-old at the time of the trial, testified to
the following. On May 22, 2018, she was at her daycare. She,
her friend, and her friend's brother went outside to play
"fake recess." She saw her father while she was
outside and she "heard something from his
voice." She thinks it was like, "I love you,
Mary." Her friend told Mary that her father
called Mary to come over but Mary did not think he would have
said that. She knows he said something. She then ran inside.
the arresting officers testified at trial. He testified to
police were called regarding a violation of the PFA. They
obtained the PFA Order from Tracy Jones, Mary's mother
and appellant's ex-wife. The police also determined by a
computer search that the PFA remained active. The police went
to appellant's residence and were informed he was at his
parents' residence down the road. Four policemen, riding
in two marked vehicles, pulled into the driveway adjacent to
the parents' residence. Two of the officers were in their
issued uniforms; another two were in plainclothes and wearing
vests marked "STATE POLICE" in big yellow letters.
The police saw appellant outside, in back of his parents'
house. They started to walk towards appellant; he turned and
ran. They identified themselves as "State Police"
and commanded him to stop running. They chased him a good
ways, maybe half a mile, before he gave up.
being given his Miranda warnings, appellant admitted
he had walked past Mary's daycare and shouted out to her,
"I love you Mary." He admitted he ran because they
were the police.
testified to the following at the trial. He and Tracy Jones
had marital problems and at times, each of them had PFAs
against the other. Appellant happened to be walking past Mary
Jones' daycare. He was not really certain she was at that
daycare. However, when he saw her outside, he was happy to
see her and he said, "I love you
Mary." He maintained that he did not yell it; he
blurted it out.
admitted he ran from the police.
jury found appellant guilty of the counts of criminal
contempt of a domestic violence protective order and
appeal, appellant's attorney ("Counsel") filed
a brief and a motion to withdraw. He concluded the appeal is
wholly without merit based upon a conscientious examination
of the record and the law. Counsel provided appellant with
the opportunity to submit issues he wished the Court to
consider. Appellant provided statements on a copy of the
trial transcript and these annotations and/or statements were
attached as Exhibit B to Counsel's Brief on appeal. The
substance of these submissions is discussed in paragraph 6
State of Delaware ("the State") argues the appeal
is meritless. It argues Appellant's annotations and/or
statements do not set forth any ground for relief, and the
evidence at trial, which included appellant's admissions
of violating the PFA and resisting arrest, was overwhelming.
Thus, the State urges the Court to affirm the judgment below.
5)The standard of review of an appeal from CCP is as follows:
The Superior Court is authorized to consider appeals from the
Court of Common Pleas in criminal matters. When addressing
appeals from the Court of Common Pleas, the Superior Court
acts as an intermediate appellate court, with the same
function as that of the Supreme Court. In considering an
appeal from the Court of Common Pleas to the Superior Court,
the Superior Court determines whether there is legal error
and whether the factual findings made by the trial judge are
sufficiently supported by the record. Factual findings by the
Court of Common Pleas are given deference and are reviewed
for clear error. Legal questions are reviewed de
novo (footnotes and citations omitted).
When reviewing a motion to withdraw and an accompanying
brief, this Court employs the standard that the Supreme Court
employs in Rule 26:
[T]his Court must: (i) be satisfied that defense counsel has
made a conscientious examination of the record and the law
for arguable issues on appeal; and (ii) 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 (footnote
and citations omitted).
forth below and consider the annotations/statements/comments
appellant has made on ...