Opinion
No. 429, 2002
Submitted: December 6, 2002
Decided: February 19, 2003
Court Below-Superior Court of the State of Delaware, in and for Sussex County in Cr. ID No. 0202004945.
Affirmed.
Unpublished opinion is below.
LINFORD U. FISHER, Defendant Below, Appellant, v. STATE OF DELAWARE, Plaintiff Below, Appellee. No. 429, 2002 In the Supreme Court of the State of Delaware. Submitted: December 6, 2002 Decided: February 19, 2003
Before VEASEY, Chief Justice, BERGER and STEELE, Justices.
Myron T. Steele, Justice:
ORDER
This 19th day of February 2003, upon consideration of the appellant's Supreme Court Rule 26(c) brief, his attorney's motion to withdraw, and the State's response thereto, it appears to the Court that:
(1) The defendant-appellant, Linford Fisher, was charged by Information with one count of Rape in the Second Degree. On June 14, 2002, Fisher pleaded nolo contendere to the lesser included offense of Unlawful Sexual Contact in the Third Degree. Fisher signed a guilty plea form and plea agreement that recommended immediate sentencing to a one-year probationary sentence.
(2) After an extensive plea colloquy, the Superior Court accepted Fisher's guilty plea. The Superior Court did not, however, immediately sentence Fisher to a one-year probationary sentence, as the plea agreement had recommended. Instead, noting that Fisher had a prior record of sex offenses, and that his latest offense had occurred while he was on probation, the Superior Court deferred sentencing pending the preparation of a presentence report.
(3) On July 11, 2002, the Superior Court sentenced Fisher to one year at Level V imprisonment, with credit for 155 days previously served. The Superior Court cited as aggravating factors Fisher's custody status at the time of the offense and the lack of amenability of lesser sanctions.
(4) Fisher's counsel has filed a brief and a motion to withdraw pursuant to Supreme Court Rule 26(c). Fisher's counsel asserts that, based upon a complete and careful examination of the record, there are no arguably appealable issues. By letter, Fisher's counsel informed him of the provisions of Rule 26(c) and provided Fisher with a copy of the motion to withdraw and the accompanying brief. Fisher also was informed of his right to supplement his attorney's presentation.
(5) Fisher has responded with an issue alleging that his guilty plea was involuntary due to an alleged breach of the plea agreement. The State has responded to Fisher's issue, as well as to the position taken by Fisher's counsel, and has moved to affirm the Superior Court's decision.
(6) The standard and scope of review applicable to the consideration of a motion to withdraw and an accompanying brief under Rule 26(c) is twofold. First, this Court must be satisfied that defense counsel has made a conscientious examination of the record and the law for arguable claims. Second, this Court 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.
Penson v. Ohio, 488 U.S. 75, 83 (1988); McCoy v. Court of Appeals, 486 U.S. 429, 442 (1988)); Anders v. California, 386 U.S. 738, 744 (1967).
(7) Fisher contends that immediate sentencing to a one-year probationary sentence was "integral" to the plea agreement. Thus, according to Fisher, when the Superior Court deferred sentencing, ordered a presentence report, and ultimately sentenced Fisher to a term of imprisonment, the Court changed the terms of the plea agreement and rendered the plea involuntary.
(8) We find no merit to Fisher's contention. The fact that Fisher did not receive immediate sentencing and a probationary sentence, as he had hoped, did not invalidate his plea agreement or render his plea involuntary. The plea agreement did not promise a particular sentence, and the Superior Court was not bound by the parties' recommendation of immediate sentencing to a one-year probationary sentence. Indeed, during the plea colloquy, Fisher explicitly acknowledged that he understood that the sentencing judge would decide whether or not to impose the sentence that was recommended by the parties. Moreover, Fisher replied in the affirmative when asked whether he understood that his prior offenses were going to be taken into consideration in the sentencing judge's decision.
See Del. Super.Ct.Crim.R. 11(e)(1)(B).
(9) This Court has reviewed the record carefully and has concluded that Fisher's appeal is wholly without merit and devoid of any arguably appealable issue.
We also are satisfied that Fisher's counsel has made a conscientious effort to examine the record and the law and has properly determined that Fisher could not raise a meritorious claim in this appeal.
NOW, THEREFORE, IT IS ORDERED that the State's motion to affirm is GRANTED. The judgment of the Superior Court is AFFIRMED. The motion to withdraw is moot.