PUSEY v. STATE, 737 A.2d 531 (Del. 1999)

No. 20, 1999.Supreme Court of Delaware.
August 4, 1999.

Appeal from the Superior Court, Sussex County, CrA S98-04-1123, -1127, -1129, 4130, -1137.

AFFIRMED AND REMANDED

Unpublished Opinion is below.

MELVIN E. PUSEY, JR., Defendant Below, Appellant v. STATE OF DELAWARE, Plaintiff Below, Appellee. No. 20, 1999. Supreme Court of Delaware. Submitted: June 21, 1999. Decided: August 4, 1999.

Court Below — Superior Court of the State of Delaware, in and for Sussex County, Cr.A. Nos. S98-04-1123, 1127-1129, -1130, and -1137

Before HOLLAND, HARTNETT, and BERGER, Justices.

ORDER
This 4th day of July 1999 upon consideration of the appellant’s brief filed pursuant to Supreme Court Rule 26(c), his attorney’s motion to withdraw, and the State’s response thereto, it appears to the Court that:

(1) This is Melvin E. Pusey, Jr.’s direct appeal from his convictions for third degree assault, aggravated menacing, possession of a firearm by a prohibited person, and two counts of terroristic threatening. Pusey was sentenced as an habitual offender on each offense. He received a total sentence of 16 years in jail followed by 6 months probation. We find no substantive merit to Pusey’s appeal as to his convictions. Accordingly, we affirm his convictions. Nonetheless, we remand this matter to the Superior Court for correction of its sentencing order as it relates to Pusey’s sentences on various misdemeanors. The sentencing order improperly imposed all of Pusey’s sentences, including his sentences on misdemeanors, pursuant to the habitual offender statute, 11 Del. C. § 4214(a), although that statute applies only to felony offenses.

(2) Pusey entered his guilty plea during the middle of trial in October 1998. In exchange for Pusey’s guilty plea the State agreed to dismiss the remaining counts of the indictment and to ask for no more than 20 years imprisonment (although the State indicated its intent to move for habitual offender sentencing). Nearly two months later, Pusey filed a motion seeking to withdraw his guilty plea. The Superior Court denied Pusey’s motion. The Superior Court later declared Pusey to be an habitual offender and sentenced him on each offense pursuant to 11 Del. C. § 4214(a). Pusey received a total of 16 years in jail followed by 6 months probation.

(3) On direct appeal Pusey’s counsel has filed a brief and a motion to withdraw pursuant to Rule 26(c). Pusey’s counsel asserts that, based upon a complete and careful examination of the record, there are no arguably appealable issues. By letter, Pusey’s attorney informed him of the provisions of Rule 26(c) and provided Pusey with a copy of the motion to withdraw and the accompanying brief. Pusey also was informed of his right to supplement his attorney’s presentation. Pusey has raised no issues for this Court’s consideration. The State has responded to the position taken by Pusey’s counsel as well as the points raised by Pusey and has moved to affirm the Superior Court’s decision. Both counsel agree, however, that the Superior Court erred as a matter of law in sentencing Pusey as an habitual offender on his misdemeanor convictions. The State contends that this error was harmless because the Superior Court’s sentences were within the statutorily authorized range of sentences for each misdemeanor offense.

(4) 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) this Court must be satisfied that defense counsel has made a conscientious examination of the record and the law for arguable claims; and (b) 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.[1]

(5) This Court has reviewed the record carefully and has concluded that Pusey’s appeal is wholly without merit and devoid of any arguably appealable issue as to his convictions. We also are satisfied that Pusey’s counsel has made a conscientious effort to examine the record and has properly determined that Pusey could not raise a meritorious claim in this appeal as to his convictions. Nonetheless, given the plain errors in the Superior Court’s sentencing orders, we remand this matter to the Superior Court to correct Pusey’s improper sentences on the misdemeanors.

NOW, THEREFORE, IT IS ORDERED that the State’s motion to affirm is GRANTED IN PART. The judgment of the Superior Court with respect to Pusey’s convictions is, therefore, AFFIRMED. This matter is REMANDED to the Superior Court, however, for correction of its sentencing order with respect to Pusey’s misdemeanor convictions only. Jurisdiction is not retained.

BY THE COURT:

Maurice A. Hartnett, III

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