 20, 2017
KEVANN D. McCASLINE, Defendant Below, Appellant,v.STATE OF DELAWARE, Plaintiff Below, Appellee.
Submitted: May 10, 2017
Court
Below-Superior Court of the State of Delaware Cr. ID No.
1508007463 (N)
Before
STRINE, Chief Justice; VALIHURA and SEITZ, Justices.
ORDER
LEO E.
STRINE, JR. CHIEF JUSTICE.
This
20th day of July 2017, having considered the no-merit brief
and motion to withdraw filed by the appellant's counsel,
and the response filed by the State, it appears to the Court
that:
(1) On
March 11, 2016, a Superior Court jury found the appellant,
Kevann D. McCasline, guilty of Disregarding a Police
Officer's Signal, Resisting Arrest, Possession of Drug
Paraphernalia, and Unlawful Use of Sound
Device.[1] During the prayer conference with counsel
on March 10, the Superior Court dismissed a charge of
Reckless Driving.[2]
(2) On
October 14, 2016, after a presentence investigation, the
Superior Court sentenced McCasline to two years at Level V
suspended after six months for one year of probation for
Disregarding a Police Officer's Signal, and to one year
at Level V suspended for one year of probation for Resisting
Arrest. For Possession of Drug Paraphernalia and Unlawful Use
of Sound Device, the Superior Court imposed fines of $100 for
each.
(3) On
appeal, McCasline's appellate counsel has 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 represents that he provided McCasline with a
copy of the motion to withdraw and the accompanying brief and
informed McCasline of his right to identify any points he
wished this Court to consider on appeal. McCasline has not
submitted any points for the Court's consideration.
(4) In
response to the Rule 26(c) brief, the State has identified an
instance of plain error in the record that should be
corrected. Otherwise, the State has moved to affirm the
Superior Court's judgment.
(5) As
noted by the State, the record reflects that, at
McCasline's sentencing (and in the sentence order), in
addition to the $100 fines that were imposed for Possession
of Drug Paraphernalia and Unlawful Use of Sound Device, the
Superior Court imposed a $100 fine for Reckless
Driving.[3] Because Reckless Driving was dismissed at
the March 10 prayer conference, the State notes that the
Superior Court erred when imposing a sentence for that
charge.
] The Court has done so and, except for the
imposition of a sentence for the dismissed Reckless Driving
charge, McCasline's appeal is wholly without merit and
devoid of any arguably appealable issue.
(7) The
Court agrees with the State that the Superior Court erred
when sentencing McCasline on the charge of Reckless
Driving.[6] Furthermore, in addition to the sentencing
error, the Superior Court docket and related documents
reflect, in error, that McCasline was convicted of
Reckless Driving.[7]
NOW,
THEREFORE, IT IS ORDERED that the State's motion to
affirm is GRANTED as to McCasline's convictions and
sentence for Disregarding a Police Officer's Signal,
Resisting Arrest, Possession of Drug Paraphernalia, and
Unlawful Use of Sound Device. The motion to withdraw is moot.
This matter is REMANDED to the Superior Court with
instructions to VACATE the conviction and sentence imposed