HINDT v. STATE, 734 A.2d 641 (Del. 1999)

No. 497, 1998.Supreme Court of Delaware.
July 6, 1999.

Appeal from the Superior Court, Kent County, CrA IK98-01-0041, 0044, 0046-0048.

AFFIRMED.

Unpublished Opinion is below.

DANNY HINDT, Defendant Below, Appellant, v. STATE OF DELAWARE, Plaintiff Below, Appellee. No. 497, 1998. Supreme Court of Delaware. Submitted: June 11, 1999. Decided: July 6, 1999.

Court Below: Superior Court of the State of Delaware, in and for Kent County, in Cr. A. Nos. IK98-01-0041, 0044, 0046 thru 0048, Def. ID No. 9712016185.

Before HOLLAND, HARTNETT and BERGER, Justices.

ORDER
This 6th day of July 1999, upon consideration of the appellant’s brief filed pursuant to Supreme Court Rule 26(c) (“Rule 26(c)”), his attorney’s motion to withdraw, and the State’s response thereto, it appears to the Court that:

(1) In October 1998, following a one-day jury trial in the Superior Court, the defendant-appellant, Danny Hindt, was convicted of Criminal Mischief (misdemeanor), Criminal Mischief (felony), Reckless Driving, Leaving the Scene of an Accident, and Failure to Report an Accident. Hindt was found not guilty of Assault Second Degree, Terroristic Threatening, and Disorderly Conduct.

(2) For the Criminal Mischief (felony) conviction, Hindt was sentenced to two years at Level V imprisonment. For the Criminal Mischief (misdemeanor) conviction, Hindt was sentenced to 30 days’ incarceration, suspended for one year at Level II probation. For Reckless Driving, Leaving the Scene of an Accident and Failure to Report an Accident, Hindt was fined a total of $530 plus surcharges and costs. This is Hindt’s direct appeal.

(3) Hindt’s trial counsel has filed a brief and a motion to withdraw pursuant to Rule 26(c). 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: (a) the Court must be satisfied that defense counsel has made a conscientious examination of the record and the law for claims that could arguably support the appeal; and (b) the 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.[1]

(4) Hindt’s counsel asserts that, based upon a complete and careful examination of the record, there are no arguably appealable issues. Hindt’s counsel states that he informed Hindt of the provisions of Rule 26(c) and provided Hindt with a copy of the motion to withdraw and the accompanying brief. Hindt also was informed of his right to supplement his counsel’s presentation. In a letter submitted to his counsel, Hindt states that he does not “have any points or grounds for this appeal now.” In the same letter, Hindt appears to complain that his attorney did not request a postponement of the trial so that Hindt could retain a private attorney.

(5) In its response to the Rule 26(c) brief, the State moves to affirm the Superior Court’s judgment. The State also challenges the jurisdictional basis to appeal Hindt’s conviction for Criminal Mischief (misdemeanor).

(6) This Court’s appellate jurisdiction is limited to cases “in which the sentence shall be death, imprisonment exceeding one month, or fine exceeding One Hundred Dollars.”[2] Hindt’s 30-day suspended sentence of incarceration for Criminal Mischief (misdemeanor) does not exceed the one month of imprisonment that is required to invoke this Court’s direct appellate jurisdiction in a criminal proceeding. Consequently, as to the Criminal Mischief (misdemeanor) conviction, Hindt has failed to invoke the appellate jurisdiction of this Court.[3] The appeal as to that conviction must be dismissed.

(7) In his letter to his counsel, Hindt appears to claim that he was not afforded the opportunity to hire counsel of his own choosing. Hindt’s claim is not supported by the record.[4] To the extent that Hindt is claiming that his trial counsel was ineffective for failing to request a trial postponement, this Court will not hear claims of ineffective assistance of counsel for the first time on direct appeal.[5]

(8) This Court has reviewed the record carefully and has concluded that Hindt’s appeal is wholly without merit and devoid of any arguably appealable issue. We also are satisfied that Hindt’s counsel has made a conscientious effort to examine the record and has properly determined that Hindt 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.

BY THE COURT:

s/ Maurice A. Hartnett, III, Justice