Sierra v. State

• Court: Supreme Court of Delaware
• Decided: January 24, 2018
• Docket: 352, 2017
• Status: Published

Opinion

IN THE SUPREME COURT OF THE STATE OF DELAWARE

FRANCO SIERRA, § § No. 352, 2017 Defendant Below, § Appellant, § Court Below—Superior Court § of the State of Delaware v. § § Cr. ID No. 1608023477 (N) STATE OF DELAWARE, § § Plaintiff Below, § Appellee. §

Submitted: January 18, 2018 Decided: January 24, 2018

Before VAUGHN, SEITZ, and TRAYNOR, Justices.

ORDER

This 24th day of January 2018, 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 June 19, 2017, Sierra resolved two different cases by pleading guilty

to Carrying a Concealed Deadly Weapon and Possession of a Destructive Weapon

and pleading nolo contedere to Assault in the Second Degree. After initially

indicating that he might wish to withdraw to his guilty plea, Sierra chose to proceed

with the presentence investigation process and sentencing. The Superior Court

sentenced Sierra as follows: (i) for Possession of a Destructive Weapon, five years

of Level V incarceration, with credit for thirty-three days previously served, suspended after four months for one year of Level III probation; (ii) for Assault in

the Second Degree, eight years of Level V incarceration, suspended after eighteen

months for one year of Level III probation; and (iii) for Carrying a Concealed Deadly

Weapon, eight years of Level V incarceration, suspended for one year of Level III

probation. This is Sierra’s direct appeal.

(2) On appeal, Sierra’s counsel (“Counsel”) filed a brief and a motion to

withdraw under Supreme Court Rule 26(c). Counsel asserts that, based upon a

complete and careful examination of the record, there are no arguably appealable

issues. Counsel informed Sierra of the provisions of Rule 26(c) and provided Sierra

with a copy of the motion to withdraw and the accompanying brief.

(3) Counsel also informed Sierra of his right to identify any points he

wished this Court to consider on appeal. Sierra has not raised any issues for this

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

moved to affirm the Superior Court’s judgment.

(4) 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)

conduct its own review of the record and determine whether the appeal is so totally

2 devoid of at least arguably appealable issues that it can be decided without an

adversary presentation.1

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

Sierra’s appeal is wholly without merit and devoid of any arguably appealable issue.

We also are satisfied that Counsel has made a conscientious effort to examine the

record and the law and has properly determined that Sierra could not raise a

meritorious claim in this 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/ Collins J. Seitz, Jr. Justice

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