Avila v. State

• Court: Supreme Court of Delaware
• Decided: December 11, 2014
• Docket: 320, 2014
• Status: Published

Opinion

IN THE SUPREME COURT OF THE STATE OF DELAWARE

JOSE AVILA, § § No. 320, 2014 Defendant Below, § Appellant, § § v. § Court Below—Superior Court § of the State of Delaware, STATE OF DELAWARE, § in and for New Castle County § Cr. ID 1312008934 Plaintiff Below, § Appellee. §

Submitted: November 3, 2014 Decided: December 11, 2014

Before STRINE, Chief Justice, RIDGELY, and VALIHURA, Justices.

ORDER

This 11th day of December 2014, upon consideration of the appellant's

Supreme Court Rule 26(c) brief, his attorney's motion to withdraw, and the

State's response thereto, it appears to the Court that:

(1) The defendant-appellant, Jose Avila, was convicted by a

Superior Court jury in June 2014 of Driving Under the Influence (third

offense). The Superior Court sentenced him to a total period of five years at

Level V incarceration to be suspended after serving two years followed by

decreasing levels of supervision. This is Avila’s direct appeal.

(2) Avila's counsel on appeal has filed a brief and a motion to

withdraw under Rule 26(c). Avila's counsel asserts that, based upon a complete and careful examination of the record, there are no arguably

appealable issues. By letter, Avila's attorney informed him of the provisions

of Rule 26(c) and provided Avila with a copy of the motion to withdraw and

the accompanying brief. Avila also was informed of his right to supplement

his attorney's presentation. Avila did not respond with any points for the

Court’s consideration.

(3) The standard and scope of review applicable to the

consideration of a motion to withdraw and an accompanying brief under

Rule 26(c) 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 presentation.1

(4) This Court has reviewed the record carefully and has concluded

that Avila’s appeal is wholly without merit and devoid of any arguably

appealable issue. We also are satisfied that Avila's counsel has made a

conscientious effort to examine the record and the law and has properly

determined that Avila could not raise a meritorious claim in this appeal.

1 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).

2 NOW, THEREFORE, 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 THE COURT:

/s/ Karen L. Valihura Justice