Dwyer v. State ( 2015 )

IN THE SUPRENIE COURT OF THE STATE OF DELAWARE
MICHAEL DWYER, §
§ No. 614, 2014
Defendant Below- §
Appellant, §
§
V. § Court Below—Superior Court
§ of the State of Delaware,
STATE OF DELAWARE, § in and for Sussex County
{5 Cr. lD Nos. 1308006490A and
Plaintiff Below— § 1308006490B
Appellee. §
Submitted: May 13, 2015
Decided: June 10, 2015
Before STRINE, Chief Justice, HOLLAND, and VALIHURA, Justices.
O R D E R
This 10th day of June 2015, upon consideration of the appellant’s
Supreme Court Rule 26(0) brief, his attorney’s motion to withdraw, and the
State’s response thereto, it appears to the Court that:
(1) On July 30, 2014, a Superior Court jury found the defendant-
appellant, Michael Dwyer, guilty of one count of Theft of a Firearm. On
August 27, 2014, a different jury convicted Dwyer of Possession of a
Firearm by a Person Prohibited (“PFPP”). On October 3, 2014, afier a
presentence investigation, the Superior Court sentenced Dwyer as a habitual
offender on both charges to a total period of nine years at Level V
incarceration, followed by a period of probation. This is Dwyer’s direct
appeal.
(2) Dwyer’s counsel on appeal has filed a brief and a motion to
withdraw pursuant to Rule 26(0). Dwyer’s counsel asserts that, based upon
a complete and careful examination of the record, there are no arguably
appealable issues. By letter, Dwyer’s attorney informed him of the
provisions of Rule 26(c) and provided Dwyer with a copy of the motion to
withdraw and the accompanying brief. Dwyer also was informed of his right
to supplement his attorney's presentation. Dwyer has not raised any issues
for this Court's consideration. The State has responded to the position taken
by Dwyer’s counsel and has moved to affirm the Superior Court's judgment.
(3) The standard and scope of review applicable to the
consideration of a motion to withdraw and an accompanying brief under
Rule 26(0) 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 presentationf
*Penson v. Ohio, 488 US. 75, 83 (1988); McCoy v. Court of Appeals of
Wisconsin, 486 US. 429, 442 (1988); Anders v. California, 386 us. 738, 744 (1967).
2
(4) This Court has reviewed the record carefully and has concluded
that Dwyer’s appeal is wholly without merit and devoid of any arguably
appealable issue. We also are satisfied that Dwyer’s counsel has made a
conscientious effort to examine the record and the law and has properly
determined that Dwyer could not raise a meritorious claim in this appeal.
NOW, THEREFORE, IT IS ORDERED that the State’s motion to
affirm is GRANTED. The judgment of the Superior Court is AFFIRIVIED.
The motion to withdraw is moot.
BY THE COURT:
/S/ Randy J. Holland
Justice