Gibson v. State

• Court: Supreme Court of Delaware
• Decided: December 27, 2018
• Docket: 397, 2018
• Status: Published

Opinion

IN THE SUPREME COURT OF THE STATE OF DELAWARE

JAMES GIBSON, § § Defendant Below, § No. 397, 2018 Appellant, § § Court Below—Superior Court v. § of the State of Delaware § STATE OF DELAWARE, § Cr. ID No. 1707009620 § Plaintiff Below, § Appellee. §

Submitted: December 26, 2018 Decided: December 27, 2018

Before VALIHURA, SEITZ, and TRAYNOR, Justices.

ORDER

After consideration of the no-merit brief and motion to withdraw filed by the

appellant’s counsel under Supreme Court Rule 26(c), the State’s response, and the

Superior Court record, it appears to the Court that:

(1) In September 2017, the appellant, James Gibson, was indicted on

charges of Assault Second Degree, Robbery Second Degree, and Indecent Exposure

Second Degree. In January 2018, Gibson pleaded guilty to the assault and robbery

charges. In exchange for Gibson’s guilty plea, the State entered a nolle prossequi on

the indecent exposure charge.

(2) In July 2018, following a presentence investigation, the Superior Court

sentenced Gibson as follows: for Assault Second Degree, twenty years at Level 5 incarceration, as a habitual offender; for Robbery Second Degree, five years at Level

5 incarceration, suspended for two years at Level 4, suspended after six months at

Level 4 for eighteen months’ supervision at Level 3. This is Gibson’s direct appeal.

(3) Gibson’s counsel has filed a brief and a motion to withdraw under

Supreme Court Rule 26(c). Gibson’s counsel asserts that, based upon a complete and

careful review of the record, there are no arguably appealable issues. In his statement

filed under Rule 26(c), counsel indicates that he informed Gibson of the provisions

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

accompanying brief. Counsel also informed Gibson of his right to submit points he

wanted this Court to consider on appeal. Gibson has not submitted any points for the

Court’s consideration. The State has responded to the Rule 26(c) brief and argues

that the Superior Court’s judgment should be affirmed.

(4) When reviewing a motion to withdraw and an accompanying brief

under Rule 26(c), this Court must be satisfied that the appellant’s counsel has made

a conscientious examination of the record and the law for arguable claims. 1 This

Court must also conduct its own review of the record and determine “whether the

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 appeal is indeed so frivolous that it may be decided without an adversary

presentation.” 2

(5) The Court has reviewed the record carefully and concluded that

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

issue. We also are satisfied that counsel made a conscientious effort to examine the

record and the law and properly determined that Gibson could not raise a meritorious

claim on appeal.

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

Court is AFFIRMED. The motion to withdraw is moot.

BY THE COURT:

/s/ Gary F. Traynor Justice

2 Penson, 488 U.S. at 81.