Everett v. State

• Court: Supreme Court of Delaware
• Decided: January 5, 2015
• Docket: 353, 2014
• Status: Published

Opinion

IN THE SUPREME COURT OF THE STATE OF DELAWARE

DERRICK T. EVERETT, § § No. 353, 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 No. 9610001540 Plaintiff Below, § Appellee. §

Submitted: December 10, 2014 Decided: January 5, 2015

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

ORDER

This 5th day of January 2015, 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) On July 30, 1997, after a two day trial, a Superior Court jury found

the appellant, Derrick Everett, guilty of Murder in the First Degree. Everett was

sentenced to life imprisonment. This Court affirmed the Superior Court’s

judgment on direct appeal.1

(2) On March 5, 2013, Everett filed his first motion for postconviction

relief. In this motion, Everett claimed that: (i) he was denied his Due Process

1 Everett v. State, 1998 WL 977124 (Del. Nov. 23, 1998). rights when the Superior Court failed to appoint him counsel for his postconviction

proceedings; (ii) his trial counsel was ineffective for failing to hire experts, failing

to obtain the victim’s medical records, and failing to present a defense; and (iii) the

Superior Court relieved the State of its burden of proving every element of Murder

in the First Degree and failed to instruct the jury on lesser included offenses. The

Superior Court referred the motion to a Commissioner who recommended

summary dismissal of the motion.

(3) On June 5, 2013, the Superior Court appointed the Office of Conflict

Counsel to represent Everett (“Postconviction Counsel”). Postconviction Counsel

filed an amended motion for postconviction relief on February 28, 2014. In this

motion, Postconviction Counsel argued that Everett’s trial counsel was ineffective

for failing to object to one of the prosecutor’s comments in her opening statement

and for identifying Everett’s attorneys as being with the Public Defender’s Office

during his opening statement. Everett’s trial counsel and the State responded to the

amended motion for postconviction relief.

(4) On June 4, 2014, the Superior Court denied the amended motion for

postconviction relief. The Superior Court concluded that the ineffective assistance

of counsel claims lacked merit. 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

2 asserts that, based upon a complete and careful examination of the record, there are

no arguably appealable issues. Postconviction Counsel informed Everett of the

provisions of Rule 26(c) and provided Everett with a copy of the motion to

withdraw and the accompanying brief.

(6) Postconviction Counsel also informed Everett of his right to identify

any points he wished this Court to consider on appeal. Everett did not submit any

points for this Court to consider. The State has responded to the Rule 26(c) brief

and moved to affirm the Superior Court's judgment.

(7) 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.2

(8) This Court has reviewed the record carefully and has concluded that

the Everett’s appeal is wholly without merit and devoid of any arguably appealable

issue. We also are satisfied that Everett’s counsel has made a conscientious effort

to examine the record and the law and has properly determined that Everett could

not raise a meritorious claim in this appeal.

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

3 NOW, THEREFORE, IT IS ORDERED that the judgment of the Superior

Court is AFFIRMED. The motion to withdraw is moot.

BY THE COURT: /s/ Leo E. Strine, Jr. Chief Justice