           IN THE SUPREME COURT OF THE STATE OF DELAWARE

FREDERICK H. MITCHELL,                   §
                                         §
      Defendant Below,                   §   No. 196, 2015
      Appellant,                         §
                                         §
      v.                                 §   Court Below—Superior Court
                                         §   of the State of Delaware,
STATE OF DELAWARE,                       §   in and for Sussex County
                                         §   Cr. ID No. 1408007610
      Plaintiff Below,                   §
      Appellee.                          §

                             Submitted: September 22, 2015
                              Decided: November 24, 2015

Before STRINE, Chief Justice; HOLLAND, and SEITZ, Justices.

                                   ORDER

      This 24th day of November 2015, 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)    In September 2014, Frederick H. Mitchell was indicted for

Aggravated Possession of Heroin (Tier 5), Drug Dealing (Tier 4), Conspiracy in

the Second Degree, Possession of Marijuana, two counts of Possession of Drug

Paraphernalia, and Failure to Wear a Seatbelt. On January 21, 2015, Mitchell pled

guilty to the lesser included offense of Aggravated Possession of Heroin (Tier 4),

and Conspiracy in the Second Degree. The State entered a nolle prosequi on the

remaining charges. A presentence investigation was ordered.
      (2)   On March 27, 2015, Mitchell was sentenced as follows: (i) for

Aggravated Possession of Heroin (Tier 4), fifteen years of Level V incarceration,

suspended after eight years for eighteen months of Level III probation; and (ii) for

Conspiracy in the Second Degree, two years of Level V incarceration, suspended

for one year of Level III probation. On April 8, 2015, Mitchell, through counsel,

filed a motion to reduce sentence. The Superior Court denied the motion on April

14, 2015.

      (3)   On April 21, 2015, Mitchell’s counsel (“Counsel”) filed a notice of

appeal from the March 27, 2015 sentencing order. Counsel filed a brief and a

motion to withdraw under Supreme Court Rule 26(c) (“Rule 26(c)”). Counsel

asserts that, based upon a complete and careful examination of the record, there are

no arguably appealable issues. Counsel informed Mitchell of the provisions of

Rule 26(c) and provided Mitchell with a copy of the motion to withdraw and the

accompanying brief.

      (4)   Counsel also informed Mitchell of his right to identify any points he

wished this Court to consider on appeal. Mitchell has raised several issues for this

Court’s consideration. The State has responded to the issues raised by Mitchell

and asked this Court to affirm the Superior Court’s judgment.

      (5)   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



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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

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

adversary presentation.1

       (6)    On appeal, Mitchell argues that: (i) his sentence for Aggravated

Possession of Heroin (Tier 4) exceeded the guidelines in the Delaware Sentencing

Accountability Commission Benchbook (“SENTAC Guidelines”); (ii) the

sentencing order did not refer to the aggravating factors the Superior Court relied

upon or the mitigating factors presented at the sentencing hearing; and (iii) the

Superior Court sentenced Mitchell without considering all of the applicable

mitigating factors and weighing those factors against the aggravating factors. We

conclude that these claims are without merit.

       (7)    First, our review of a sentence “generally ends upon determination

that the sentence is within the statutory limits prescribed by the legislature.”2

Aggravated Possession of Heroin (Tier 4) is a Class C felony3 with a maximum

statutory penalty of fifteen years of Level V incarceration.4 Mitchell’s sentence for

Aggravated Possession of Heroin (Tier 4)—fifteen years of Level V incarceration,

suspended after eight years—did not exceed the statutory limits. To the extent this

1
  Penson v. Ohio, 488 U.S. 75, 83 (1988); Leacock v. State, 690 A.2d 926, 927-28 (Del. 1996).
2
  Fink v. State, 817 A.2d 781, 790 (Del. 2003).
3
  16 Del. C. § 4753(c)(3).
4
  11 Del. C. § 4205(b)(3).


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sentence exceeded SENTAC Guidelines, “a defendant has no legal or

constitutional right to appeal a statutorily authorized sentence simply because it

does not conform” to SENTAC Guidelines.5

         (8)     Second, Mitchell’s claim that the sentencing order does not refer to

any of the aggravating factors the Superior Court relied upon is incorrect. The

sentencing order identifies prior violent criminal activity as an aggravating factor.

The Superior Court noted at the sentencing hearing that Mitchell had a prior

conviction for Possession with Intent to Deliver, which is classified as a violent

felony. The Superior Court also noted at the sentencing hearing that a large

amount of heroin was found in Mitchell’s car and that Mitchell changed his

statements to the police over time in order to minimize his involvement.

         (9)     As to his claim that the sentencing order did not identify any

mitigating factors, Mitchell cites no authority to support the proposition that a

sentencing order must identify the mitigating factors the sentencing court did not

rely upon in departing from SENTAC Guidelines. In addition, this Court has

rejected the argument that a sentencing court’s failure to make a record of its

reasons for departing from SENTAC Guidelines constitutes reversible error.6

         (10) Finally, Mitchell’s claim that the Superior Court failed to consider the

applicable mitigating factors and weigh those factors against the aggravating

5
    Mayes v. State, 604 A.2d 839, 845 (Del. 1992).
6
    Id. at 846.


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factors is without merit. Evidence of mitigating factors—including Mitchell’s

employment history and cooperation with authorities—was presented to the

Superior Court. The fact that the Superior Court was more swayed by other

factors—including Mitchell’s previous conviction Possession with Intent to

Deliver, the large amount of heroin found in Mitchell’s car, and Mitchell’s

attempts to minimize his involvement—does not mean that the Superior Court

failed to consider the mitigating factors or sufficiently weigh those factors.

      (11) Having carefully reviewed the record, we conclude that Mitchell’s

appeal is wholly without merit and devoid of any arguably appealable issue. We

also are satisfied that Mitchell’s counsel has made a conscientious effort to

examine the record and the law and has properly determined that Mitchell 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/ Leo E. Strine, Jr.
                                        Chief Justice




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