Conkey v. State

• Court: Supreme Court of Delaware
• Decided: December 19, 2022
• Docket: 128, 2022
• Status: Published

Opinion

IN THE SUPREME COURT OF THE STATE OF DELAWARE

SHAMIR CONKEY, § § Defendant Below, § No. 128, 2022 Appellant, § § Court Below—Superior Court v. § of the State of Delaware § STATE OF DELAWARE, § Cr. ID No. 1911011245 (N) § Appellee. §

Submitted: December 15, 2022 Decided: December 19, 2022

Before SEITZ, Chief Justice; VALIHURA and TRAYNOR, Justices.

ORDER

After consideration of the appellant’s opening brief and the appellee’s motion

to remand, it appears to the Court that:

(1) A Superior Court jury found the appellant, Shamir Conkey, guilty of

first-degree robbery, second-degree assault (as a lesser-included offense of first-

degree assault), and second-degree reckless endangering. On March 25, 2022, the

court sentenced Conkey as follows: for first-degree robbery, to twenty-five years of

incarceration, suspended after five years for decreasing levels of supervision; for

second-degree assault, to eight years of incarceration, suspended after two years for

one year of probation; and for second-degree reckless endangering, to one year of

incarceration, suspended for one year of probation. This is Conkey’s direct appeal. (2) Conkey’s trial counsel, an attorney with the Office of Defense Services

(“ODS”), filed a notice of appeal on Conkey’s behalf. A different ODS attorney

later substituted as counsel for Conkey in this appeal. Counsel filed a brief and a

motion to withdraw under Supreme Court Rule 26(c), asserting that, based upon a

conscientious review of the record, the appeal is wholly without merit. After

reviewing the record for arguably appealable claims,1 this Court granted the motion

to withdraw and appointed substitute counsel, directing counsel to brief whether

second-degree assault and second-degree reckless endangering should have merged

for sentencing in the circumstances of this case, as well as any other issues presented

by the record.

(3) Substitute counsel filed an opening brief on Conkey’s behalf, arguing

that second-degree assault and second-degree reckless endangering should have

merged for sentencing. In response, the State concedes that the offenses should have

merged in the circumstances of this case and requests that the case be remanded for

resentencing. Conkey’s counsel has indicated that he does not oppose the motion

for remand. Under the circumstances, we conclude that the appropriate course of

action is to remand this matter to the Superior Court so that Conkey may be

resentenced.

1 Penson v. Ohio, 488 U.S. 75, 80, 82-83 (1988); Leacock v. State, 690 A.2d 926, 927-28 (Del. 1996).

2 NOW, THEREFORE, IT IS ORDERED that the matter is REMANDED to

the Superior Court for further action in accordance with this order. Jurisdiction is

not retained.

BY THE COURT:

/s/ Collins J. Seitz, Jr. Chief Justice