Johnson v. Delaware

• Court: Supreme Court of Delaware
• Decided: January 4, 2023
• Docket: 247, 2022
• Status: Published

Opinion

IN THE SUPREME COURT OF THE STATE OF DELAWARE

HEIVYN JOHNSON, § § Defendant Below, § No. 247, 2022 Appellant, § § Court Below—Superior Court v. § of the State of Delaware § STATE OF DELAWARE, § Cr. ID Nos. K2104008452 § K2104008430 Appellee. §

Submitted: November 21, 2022 Decided: January 4, 2023

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

ORDER

After consideration of the brief and motion to withdraw filed by the

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

record on appeal, it appears to the Court that:

(1) The appellant, Heivyn Johnson, pleaded guilty to criminally negligent

homicide (as a lesser-included offense of manslaughter) and possession of a firearm

by a person prohibited (“PFBPP”). Johnson was a juvenile at the time of the offenses

and had a history of juvenile adjudications, including for first-degree robbery. As

part of the plea agreement, Johnson consented to be prosecuted as an adult in the

Superior Court; the State dismissed other weapon- and drug-related charges; and the

parties stipulated that Johnson’s prior juvenile adjudications did not make the PFBPP offense subject to a minimum-mandatory term of incarceration.1 The

Superior Court sentenced Johnson to eight years of imprisonment for criminally

negligent homicide and to eight years of imprisonment, suspended after five years

for decreasing levels of supervision, for PFBPP. This is Johnson’s direct appeal.

(2) On appeal, Johnson’s counsel has filed a brief and a motion to withdraw

under Supreme Court Rule 26(c). Johnson’s counsel asserts that, based upon a

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

In his statement filed under Rule 26(c), counsel indicates that he informed Johnson

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

withdraw and the accompanying brief. Counsel also informed Johnson of her right

to submit points she wanted this Court to consider on appeal. Johnson 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.

(3) 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.2 This

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

1 App. to Opening Brief at A71. See 11 Del. C. § 1448(e) (establishing minimum-mandatory sentences for PFBPP based on a defendant’s prior convictions). 2 Penson v. Ohio, 488 U.S. 75, 82-83 (1988); McCoy v. Court of Appeals of Wisconsin, 486 U.S. 429, 442 (1988); Anders v. California, 386 U.S. 738, 744-45 (1967).

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

presentation.”3

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

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 Johnson 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

3 Penson, 488 U.S. at 82.