Pennington v. State ( 2014 )

IN THE SUPREME COURT OF THE STATE OF DELAWARE
DAVID PENNINGTON, §
§
Defendant Below, § No. 439, 2014
Appellant, §
§ Court Below—Superior Court
v. § of the State of Delaware,
§ in and for Sussex County
STATE OF DELAWARE, § Cr. ID No. 1302020857
§
Plaintiff Below, §
Appellee. §
Submitted: November 20, 2014
Decided: December 15, 2014
Before STRINE, Chief Justice, RIDGELY, and VALIHURA, Justices.
ORDER
This 15th day of December 2014, upon consideration of the appellant's
Supreme Court Rule 26(c) brief, the State's response, and the record below, it
appears to the Court that:
(1) In April 2013, the appellant, David Pennington, was indicted on two
counts of Dealing in Child Pornography. On June 20, 2013, Pennington pled
guilty to one count of Dealing in Child Pornography and one count of Possession
of Child Pornography. After a presentence investigation, Pennington was
sentenced to twenty-five years of Level V incarceration, with credit for 225 days
previously served, for Dealing in Child Pornography and three years of Level V
incarceration, followed by six months of Level IV Home Confinement, for
Possession of Child Pornography. In imposing the maximum sentence, the
Superior Court judge expressed his concern for the risk posed by Pennington to
children in the community.
(2) On November 13, 2013, Pennington filed a pro se motion for
postconviction relief. In this motion, Pennington argued that there was vindictive
prosecution because his sentence exceeded the sentencing guidelines and the
recommendation of the prosecutor, his sentence was improperly enhanced, he
received no benefit from the plea agreement, and his counsel was ineffective. The
Superior Court appointed counsel (“Postconviction Counsel”) to represent
Pennington and directed Postconviction Counsel to file any amendments to
Pennington’s motion for postconviction relief by May 30, 2014.
(3) On May 29, 2014, Postconviction Counsel filed a motion to withdraw
under Superior Court Criminal Rule 61(e)(2). Postconviction counsel represented
that, after conducting a thorough and conscientious review of the record, law and
allegations, he had concluded that Pennington’s postconviction claims were wholly
without merit and devoid of any potentially arguable issues. Pennington was
informed of his right to respond to the motion to withdraw by Postconviction
Counsel and the Superior Court. Pennington did not respond to the motion to
withdraw.
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(4) On July 29, 2014, the Superior Court granted Postconviction
Counsel’s motion to withdraw and denied Pennington’s motion for postconviction
relief. The Superior Court concluded that Pennington’s claims were belied by the
Truth-in-Sentencing guilty plea form and the guilty plea colloquy. This appeal
followed.
(5) On appeal, Postconviction Counsel filed a brief and a motion to
withdraw under Supreme Court Rule 26(c) (“Rule 26(c)”). Postconviction Counsel
asserts that, based upon a complete and careful examination of the record, there are
no arguably appealable issues. Postconviction Counsel informed Pennington of the
provisions of Rule 26(c) and provided Pennington with a copy of the motion to
withdraw and the accompanying brief. Postconviction Counsel also informed
Pennington of his right to identify any points he wished this Court to consider on
appeal. Pennington did not provide any points for this Court’s consideration.
(6) When reviewing a motion to withdraw and an accompanying brief
under Rule 26(c), this Court must: (i) be satisfied that defense counsel has made a
conscientious examination of the record and the law for arguable claims; and (ii)
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.1
1
Penson v. Ohio, 488 U.S. 75, 83 (1988); Leacock v. State, 690 A.2d 926, 927-28 (Del. 1996).
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(7) This Court has reviewed the record carefully and has concluded that
Pennington’s appeal is wholly without merit and devoid of any arguably
appealable issue. We also are satisfied that Postconviction Counsel has made a
conscientious effort to examine the record and the law and has properly determined
that Pennington could not raise a meritorious claim in this appeal.
NOW, THEREFORE, IT IS ORDERED that the judgment of the Superior
Court is AFFIRMED. The motion to withdraw is moot.
BY THE COURT:
/s/ Karen L. Valihura
Justice
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