IN THE SUPREl\/[E COURT OF THE STATE OF DELAWARE

BRAHU\/I WATERMAN, §
§ No. 484, 2015
Defendant Below, §
Appellant, § Court Below - Superior Court
§ of the State of Delaware
v. §
§ Cr. IDNo. 14l20l7572
STATE OF DELAWARE, §
§
Plaintiff Below, §
Appellee. §

Submitted: May ll, 2016
Decided: July 8, 2016

Before STRINE, Chief Justice; HOLLAND and VAL[HURA, Justices.
0 R D E R

This 8“‘ day of July 2016, upon consideration of the appellant’s brief filed
under Supreme Court Rule 26(c), his attorney’s motion to withdraw, and the State’s
response, it appears to the Court that:

(1) On February 16, 2015 , the appellant, Brahirn Waterrnan, was indicted
on charges of Drug Dealing, Aggravated Possession, Resisting Arrest, and Criminal
Mischief On April 1, 2015, Watennan pled guilty to Possession with Intent to
Distribute Heroin and Resisting Arrest. The plea agreement provided that there
would be a presentence investigation, and that the State would seek habitual offender

sentencing and would recommend no more than ten years at Level V.

(2) On August 5, 2015, the State moved to declare Waterman a habitual
offender. The Superior Court granted that motion at sentencing on August 7, 2015.
At sentencing, Waterman apologized and requested treatment. The Superior Court
sentenced Waterman to ten years at Level V and the Greentree Program. This is
Waterrnan’s direct appeal.

(3) On appeal, Waterrnan’s defense counsel ("Defense Counsel") has filed
a no-merit brief and a motion to withdraw under Supreme Court Rule 26(0).1
Defense Counsel asserts that, based upon a complete and careful examination of the
record, there are no arguably appealable issues. Advised that he had a right to
supplement the draft brief with written points for the Court’s consideration,
Waterman provided Defense Counsel with points that are included in the brief filed
with the Court. The brief also includes a copy of a two-page letter from Waterrnan
to the Superior Court President Judge concerning Waterrnan’s dissatisfaction with
Defense Counsel. The State has responded to Waterrnan’s points and his letter to
the President Judge and has moved to affirm the Superior Court’s judgment.

(4) When reviewing a motion to withdraw and brief under Rule 26(c), the

Court must be satisfied that counsel has made a conscientious examination of the

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1 See Del. Supr. Ct. R. 26(c) (goveming criminal appeals without merit).
2

record and the law for arguable claims.z Additionally, the Court must conduct its
own review of the record and determine "whether the appeal is indeed so frivolous
that it may be decided without an adversary presentation."3 lf the Court finds
nonfrivolous issues for appeal, the Court will grant counsel’s motion to withdraw
and will appoint new counsel to represent the appellant on appeal."

(5) The Court has reviewed Waterman’s points. In them, Waterrnan
expresses remorse for his criminal acts and regret that he was not provided with
appropriate drug treatment in the past. He does not contest the voluntariness of the
plea or the sentence irnposed.

(6) There is no basis for this Court to review Waterrnan’s letter to the
President Judge. The letter was not submitted in response to the Rule 26(0)
submission provided by Defense Counsel. Furthermore, claims of ineffective
assistance of counsel are not reviewable on direct appeal.§

(7) Having conducted "a full examination of all the proceedings" and found

"no nonfrivolous issue for appeal,"6 the Court concludes that the appeal is "wholly

2 Penson v. Ohz`o, 488 U.S. 75, 83 (1988); McCoy v. Court ofAppeals of Wz`sconsin, 486 U.S. 429,
442 (l988); Anders v. Calz`j”ornia, 386 U.S. 738, 744 (l967).

3 Penson v. Ohz`o, 488 U.S. at 81-82.

4 Id. at 80.

5 Desmond v. State, 654 A.2d 821, 829 (Del. 1994).
6 Penson v. Ohio, 488 U.S. at 80.

without merit."7 The Court is satisfied that Defense Counse1 made a conscientious

effort to examine the record and the law and properly determined that Waterman

could not raise a meritorious claim on 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/ Randy l Holland
Justice

7 Supra note 1.

