Loper v. State

IN TI-[E SUPREME COURT OF TI-[E STATE OF DELAWARE
UNIQUE T. LOPER, §
§ No. 7, 2017
Defendant Below- §
Appellant, §
§
v. § Court Below: Superior Court
§ of the State of Delaware
STATE OF DELAWARE, §
§ Cr. ID 1602006156 (N)
Plaintiff Below- §
Appellee. §
Submitted: July 12, 2017
Decided: August 18, 2017
Before VALlHURA, VAUGHN, and SEITZ, Justices.
O R D E R
This 18‘h day of August 2017, upon consideration of the appellant’s brief filed
under Suprerne Court Rule 26(c), his attomey’s motion to Withdraw, and the State’s
response thereto, it appears to the Coult that:
(l) In Septernber 2016, a Superior Court jury convicted the defendant-
appellant, Unique T. Loper, of one count each of Carrying a Concealed Deadly
Weapon, Possession of a Firearm by a Person Prohibited, and Possession of
Ammunition by a Person Prohibited. The Superior Court declared Loper to be a
habitual offender and sentenced him to a total period of thirty-one years at Level V
incarceration, to be suspended after serving eighteen years in prison for decreasing
levels of supervision. This is Loper’s direct appeal.
(2) Loper’s counsel has filed a brief and a motion to withdraw under
Supreme Court Rule 26(c). Counsel asserts that, based upon a complete and careful
examination of the record, there are no arguably appealable issues. By letter, counsel
informed Loper of the provisions of Rule 26(c) and gave him a copy of the motion
to withdraw and the accompanying brief and appendix. Loper also Was informed of
his right to supplement his attomey’s presentation Loper raises two arguable issues
for the Court’s consideration. The State has responded to the Rule 26(c) brief and
Loper’s points and has moved to affirm the Superior Court’sjudgment.
(3) The trial record fairly reflects that, on January 31, 2016, a fight broke
out at Famous Tim’s Tavern in Wilmington, Delaware. Ryan Dill, a bartender who
was working that evening, testified at trial that he noticed several groups of
individuals arguing near the bar. The argument escalated into a fist fight. Dill saw
a short, black man attempt to pull something from his Waistband. Several bar patrons
yelled that the man had a gun. As the fight moved to bar entrance, Dill saw the man
extend his arm With a gun in his hand. Other patrons wrestled the man with the gun
to the ground, punching and kicking him. Someone pull a fire extinguisher from the
wall and struck the man With it. Someone else dragged the man, who appeared to
be unconscious, outside the door of the bar. Dill then heard a single gunshot.
(4) Wilmington police officers arrived on the scene. A single, spent .40
caliber shell casing was found outside the front door of the bar. Several days after
the incident, police collected four blood samples from inside the bar’s entrance.
DNA testing positively matched one of the samples to Loper. Loper later gave a
statement to police, which was played for thejury at trial, admitting that he brought
a .40 caliber gun to the bar. Loper did not testify or present any other evidence at
trial. The jury convicted him of all counts.
(5) Loper raised two issues in response to his counsel’s Rule 26(c) brief on
appeal. First, he contends that his trial counsel was ineffective for failing to move
to suppress Loper’s statement to the police because Loper was on drugs at the time
he made the statement Second, Loper argues that the evidence was insufficient to
convict him because the State did not present any witness who could positively
identify him as the man with the gun.
(6) The standard and scope of review applicable to the consideration of
defense counsel’s motion to Withdraw and an accompanying brief under Rule 26(c)
is twofold: (a) the Court must be satisfied that defense counsel has made a
conscientious examination of the record and the law for claims that could arguably
support the appeal; and (b) the Court must conduct its own review of the record in
order to determine whether the appeal is so totally devoid of at least arguably
appealable issues that it can be decided without an adversary presentation.l
l Penson v Ohio, 488 U.S. 75, 83 (1988); McCoy v. Court of Appeals of Wisconsin, 486 U.S. 429,
442 (1988); Anders v. Cah'fornia, 386 U.S. 738, 744 (1967).
(7) With respect to Loper’s first argument challenging his counsel’s failure
to file a motion to suppress, this Court will not consider a claim of ineffective
assistance of counsel for the first time on direct appeal.2 Thus, we will not consider
this claim further and only address Loper’s challenge to the sufficiency of the State’s
evidence to convict him.
(8) In reviewing a sufficiency of the evidence claim, the Court must
determine, after viewing the evidence in the light most favorable to the prosecution,
whether any rational trier of fact could have found the defendant guilty beyond a
reasonable doubt.3 The State can meet its burden of proof through direct
or circumstantial evidence.“ In-court identification or eyewitness testimony is not
required to prove identity.5 Rather, the test to establish identity is whether a rational
jury, viewing the evidence and all reasonable inferences drawn from the evidence,
could conclude beyond a reasonable doubt that the defendant committed the crimes
c:harged.6
(9) In this case, although the bartender was unable to identify Loper as the
man with the gun, Loper’s blood was found at the scene, as was a shell casing
establishing that a .40 caliber gun had been fired. More importantly, Loper admitted
2 Johnson v. State, 962 A.2d 233, 234 (DeI. 2008).
3 Jac'kson v. Virginia, 443 U.S. 307, 319 (1979).
4 Vincent v. State, 996 A.2d 777, 779 (Del. 2010).
5 McDonaId v. State, 2016 WL 4699155, *2 (Del. Sept. 7, 2016).
6 Vincent v. State, 996 A.2d at 779.
to the police that he had a .40 caliber gun at the bar on the night in question. We
conclude that the State’s evidence was sufficient to prove beyond a reasonable doubt
that Loper was guilty of a Carrying a Concealed Deadly Weapon and of Possession
of a Firearm and Ammunition by a Person Prohibited.
(10) The Court has reviewed the record carefully and has concluded that
Loper’s appeal is wholly without merit and devoid of any arguably appealable issue.
We also are satisfied that Loper’s counsel has made a conscientious effort to examine
the record and has properly determined that Loper could not raise a meritorious claim
in this appeal.
NOW, TI-[EREFORE, IT IS ORDERED that the State’s motion to affirm is
GRANTED. The judgment of the Superior Court is AFFIRMED. The motion to
withdraw is moot.
BY TI-[E COURT:
, TUQ%;
0 Justice