IN TI-[E SUPREME COURT OF THE STATE OF DELAWARE

RAYMOND RODRIQUEZ, §
§ No. 486, 2016
Defendant Below- §
Appellant, § Court Below_Superior Court
§ of the State of Delaware
v. §
§ Cr.IDNo.1511012890
STATE OF DELAWARE, §
§
Plaintiff Below- §
Appellee. §

Submitted: March l, 2017
Decided: May ll, 2017

Before VALII~IURA, VAUGHN, and SEITZ, Justices.
M_R

This 11th day of May 2017, upon consideration of the appellant’s
Suprerne Court Rule 26(c) brief, the State’s response, and the record below,
it appears to the Court that:

(1) On June 8, 2016, a Superior Court jury found the appellant,
Raymond Rodriguez, guilty of Drug Dealing (Tier 4_Cocaine), Aggravated
Possession (Tier S_Cocaine), Drug Dealing (Tier 2_Heroin), Aggravated
Possession (Tier I_Heroin), and Possession of Marijuana. The Superior
Court merged the Aggravated Possession (Tier S_Cocaine) charge with the
Drug Dealing (Tier 4_Cocaine) charge for sentencing purposes The

Superior Court sentenced Rodriguez as follows: (i) for Drug Dealing (Tier

4-Cocaine), twenty-five years of Level V incarceration, suspended after
two years for decreasing levels of supervision; (ii) for Drug Dealing (Tier
Z_Heroin), twenty-five years of Level V incarceration, suspended after two
years for eighteen months of` Level III probation; (iii) for Aggravated
Possession (Tier I_Heroin), fifteen years of Level V incarceration,
suspended after one year for eighteen months of Level III probation; and (iv)
for Possession of Marijuana, payment of a fine. This is Rodriguez’s direct
appeal

(2) On appeal, Rodriguez’s counsel (“Counsel”) filed a brief and a
motion to withdraw pursuant to Supreme Court Rule 26(c) (“Rule 26(c)”).
Counsel asserts that, based upon a complete and careth examination of the
record, there are no arguably appealable issues. Counsel informed
Rodriguez of the provisions of Rule 26(c) and provided Rodriguez with a
copy of` the motion to withdraw and the accompanying brief. Counsel also
informed Rodriguez of his right to identify any points he wished this Court
to consider on appeal. Rodriguez has raised several issues f`or this Court’s
consideration The State has responded to the issues raised by Rodriguez
and moved to affirm the Superior Court’s judgment

(3) When reviewing a motion to Withdraw and an accompanying

brief, this Court must: (i) be satisfied that defense counsel has made a

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.'

(4) The trial record in this case reflects that Wilmington police
received information about an individual leaving the train station with a
large amount of heroin. Police officers received a picture of the suspect and
stopped Rodriguez as he left the train station on November 20, 2015. One of
the police officers testified that he recognized Rodriguez from the
photograph provided and from his own previous dealings with him.

(5) Rodriguez moved for a mistrial, which the Superior Court
denied after concluding the comment was innocuous Rodriguez declined
the Superior Court’s offer to give a curative instruction to the jury. The
Superior Court instructed the witness to be more careful going forward.

(6) During a pat-down search of Rodriguez, the police discovered
he was carrying more than 200 bags of heroin and almost an ounce of
cocaine. A subsequent search of Rodriguez’s basement bedroom led to the
discovery of marijuana and more heroin. After waiving his Mz`randa rights,

Rodriguez told the police he went to Philadelphia to obtain more heroin to

 

1 Pem-on v. Ohm, 433 U.s. 75, 83 (1933); Leacock v. Sra¢e, 690 A.zd 926, 927-28 (Del.
1996).

sell, his supplier fronted him the cocaine and heroin, and the price of the
drugs. A forensic analytical chemist testified that the substances seized from
Rodriguez’s person and home tested positive for cocaine, heroin and
marijuana The jury found Rodriguez guilty of Drug Dealing (Tier 4-
Cocaine), Aggravated Possession (Tier S_Cocaine), Drug Dealing (Tier
2_Heroin), Aggravated Possession (Tier l_Heroin), and Possession of
Marijuana.

(7) In his first point on appeal, Rodriguez contends he was charged
with and convicted of drug offenses involving all tier weights For purposes
of sentencing, the Superior Court merged the Aggravated Possession (Tier
5_Cocaine) charge with the Drug Dealing (Tier 4_Cocaine) charge. The
State concedes the Aggravated Possession (Tier l-Heroin) charge should
have been merged with the Drug Dealing (Tier 2-Heroin) charge for
sentencing We therefore remand to the Superior Court for the purpose of
merging the Aggravated Possession (Tier l_I-Ieroin) charge with the Drug
Dealing (Tier 2_I-Ieroin) charge and resentencing based on that merger.

(8) Rodriguez next contends his trial counsel was ineffective The
Court does not consider claims of ineffective counsel for the first time on

direct appeal.2 Finally, Rodriguez claims there was a violation of Superior

 

2 Desmond v. State, 654 A.2d 821, 829 (Del. 1994).

Court Criminal Rule 16, which governs discovery. Rodriguez does not offer
any basis for this claim and the record does not support this claim.

(9) This Court has reviewed the record carefully and has concluded
that Rodriguez’s appeal is wholly without merit and devoid of any arguably
appealable issue. We also are satisfied that Counsel has made a
conscientious effort to examine the record and the law and has properly
determined that Rodriguez could not raise a meritorious claim in this appeal.

NOW, THEREFORE, IT IS ORDERED that, with the exception of
the lack of merger of the Aggravated Possession (Tier l_Heroin) charge
with the Drug Dealing (Tier 2_Heroin) charge, the judgment of the
Superior Court is AFFIRMED. The motion to withdraw is GRANTED.
The matter is REMANDED to the Superior Court for merging of the
Aggravated Possession (Tier l_Heroin) charge with the Drug Dealing (Tier
2-Heroin) charge and the resentencing of Rodriguez with new counsel.
Jurisdiction is not retained

BY TI'IE COURT:

 

Justice

