Derose v. State of Delaware. ( 2016 )

IN THE SUPERIOR COURT OF THE STATE OF DELAWARE
CHARLES J. DEROSE, )
)
Defendant-Below, )
Appellant )
)
v. ) ID. No. 1210014598
)
)
STATE OF DELAWARE, )
)
Plaintiff-Below, )
Appellee. )
Submitted: January 4, 2016
Decided: January 8, 2016
ORDER
Upon Appeal from the Court of Common Pleas of the State of Delaware
in and for New Castle County,
AFFIRMED
This 8thday of January, 2016, upon consideration of the Appellant Charles
J.Derose’s brief filed under Supreme Court Rule 26(c) (“Rule 26(c)”) (made
applicable to here via Superior Court Criminal Rule 57(d)) 1, his attorney’s motion
to withdraw, the State’s response, and the record in this case, it appears to the
Court that:
1
Super. Ct. Crim. R. 57(d) (“In all cases not provided for by rule or administrative order,
the court shall regulate its practice in accordance with the applicable Superior Court civil rule or
in any lawful manner not inconsistent with these rules or the rules of the Supreme Court.”).
(1) The defendant, Charles DeRose, was charged by Information in the
Court of Common Pleas with one count of Driving Under the Influence of Alcohol
on November 4, 2014.
(2) The evidence at trial demonstrated that late in the evening of
September 22, 2012, a witness, John Joswick, observed DeRose driving his vehicle
at a high rate of speed on East Ayre Street in Wilmington, Delaware. 2DeRose
failed to stop at a stop sign, hit the curb on the right side of the road, and then hit a
car parked on the sidewalk on the left side of the road.3 The impact pushed the
parked vehicle into two other parked vehicles. 4Mr. Joswick stated that when he
checked on him, DeRose was incoherent and smelled very strongly of
alcohol. 5New Castle County Police Officer Maura Schultz testified that she found
multiple open and empty beer bottles in DeRose’s vehicle.6 And when Officer
Schultz interviewed him at the hospital, DeRose smelled of alcohol. 7
(3) Following a jury trial in the Court of Common Pleas, DeRose was
found guilty of Driving Under the Influence of Alcohol. DeRose’s defense at trial
2
See C.C.P. Trial Tr. at 30, 37-38.
3
Id. at 30, 32-33.
4
Id. at 34.
5
Id. at 35-36.
6
Id. at 21-22.
7
Id. at 23.
-2-
was that his brakes may have failed, that he blacked out and suffered memory loss
of the crash. This is DeRose’s direct appeal.
(4) This Court takes criminal appeals from the Court of Common
Pleas. 8Such appeals are “reviewed on the record,” not “tried de novo.” 9In that way,
this Court “functions in the same manner as the Supreme Court, in its position as
an intermediate appellate court, when considering an appeal from the Court of
Common Pleas.”10
(5) DeRose’s counsel on appeal (“Counsel”) has filed a brief and motion
to withdraw pursuant to Supreme Court Rule 26(c).Counsel asserts that, based
upon a careful and complete examination of the record, there are no arguably
appealable issues.
(6) When considering a brief filed pursuant to Rule 26(c), the Court must
be satisfied that defense counsel made a conscientious examination of the record
and the law for claims that could arguably support the appeal. 11 The Court must
also conduct its own review of the record and determine whether the appeal is so
8
DEL. CODE ANN. tit 11, § 5301(c) (2015).
9
Id.
10
Layne v. State, 2006 WL 3026236, at *1 (Del. Super. Ct. Sept. 26, 2006) (citing Dickens
v. State, 2003 WL 22172737, at *3 (Del. Super. Ct. July 11, 2003)); see also Baker v. Connell,
488 A.2d 1303, 1309 (Del. 1985) (Superior Court function as intermediate appellate court is
basically the same as the Supreme Court).
11
Penson v. Ohio, 488 U.S. 75, 83 (1988); McCoy v. Court of Appeals of Wisconsin, 486
U.S. 429, 442 (1988); Anders v. California, 386 U.S. 738, 744 (1967).
-3-
totally devoid of at least arguably appealable issues that it can be decided without
an adversary presentation.12
(7) DeRose filed his notice of appeal to this Court on August 4, 2015.
Counsel filed a motion to withdraw with an accompanying brief and appendix
pursuant to Supreme Court Rule 26(c) on December 8, 2015.13DeRose was
informed that he had a right to respond to the motion to withdraw and to
supplement the Rule 26(c) brief.
(8) DeRose’s supplement to the opening brief challenges the sufficiency
of the evidence. Specifically, DeRose claims that Mr. Joswick and Officer Shultz
were biased and that their trial testimony was inconsistent. The State has
responded to DeRose’s claims as well as the position taken by Counsel. The Court
treats the State’s response as a motion to affirm the Court of Common Pleas’s
judgment.
(9) When reviewing a claim of insufficient evidence, this Court must
determine whether, after reviewing the evidence in the light most favorable to the
prosecution, any rational trier of fact could have found the essential elements of the
crime beyond a reasonable doubt.14 When making that determination the Court
12
Id.
13
The appendix includes a copy of the complete trial transcript.
14
Poon v. State, 880 A.2d 236, 238 (Del. 2005).
-4-
makes no distinction between direct and circumstantial evidence. 15 Moreover,
when the determination of facts turns on a question of credibility of a witness, this
Court will not substitute its opinion for that of the trier of fact. 16
(10) DeRosewas charged with and convicted of Driving a Vehicle Under
the Influence of Alcohol in violation of title 21, Section 4177(a)(1) of the
Delaware Code.17Under § 4177(a)(1), “[n]o person shall drive a vehicle . . . when
the person is under the influence of alcohol.” 18The State, therefore, had the burden
to prove two elements: 1) that the defendant was driving; and 2) that the defendant
was under the influence of alcohol while driving. 19 Under Delaware law one
drives “while under the influence” when “the person is, because of alcohol . . . less
able than the person would ordinarily have been, either mentally or physically, to
exercise clear judgment, sufficient physical control, or due care in the driving of a
vehicle.”20 In this case, the evidence adduced at trial clearly was sufficient to
sustain DeRose’s conviction. The jury was solely responsible for judging the
15
Id. (citing Skinner v. State, 575 A.2d 1108, 1121 (Del. 1990)).
16
Id.
17
SeeDEL. CODE ANN. tit. 21, § 4177(a)(1) (2012) (governing driving a vehicle under the
influence).
18
Del. Code Ann. tit 21, § 4177(a)(1) (2013).
19
Church v. State, 2010 WL 5342963, at *2 (Del. Dec. 22, 2010).
20
Del. Code Ann. tit 21, § 4177(c)(10) (2013).
-5-
credibility of the witnesses and resolving conflicts in the testimony. 21 It was
entirely within the jury’s purview to credit the trial testimony of Joswick and
Officer Schultz regarding DeRose’s physical and mental state at the time of his
accident.22
(11) After carefully reviewing the record, the Court has concluded that
DeRose’s appeal is wholly without merit and devoid of any arguably appealable
issue. The Court is satisfied that Counsel made a conscientious effort to examine
the record and properly determined that DeRose 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 Court of Common Pleas is AFFIRMED.
The motion to withdraw is MOOT.
SO ORDERED this 8thday of January, 2016.
PAUL R. WALLACE, JUDGE
Original to Prothonotary
cc: Kester I.H. Crosse, Esquire
Amanda J. DiLiberto, Deputy Attorney General
21
Tyre v. State, 412 A.2d 326, 330 (Del. 1980).
22
Kelly v. State, 2005 WL 940899, at *1 (Del. Apr. 22, 2005) (citing Tyre v. State, 412
A.2d 326, 330 (Del. 1980)).
-6-