             IN THE SUPREME COURT OF THE STATE OF DELAWARE

JASON LINEWEAVER,                       §
                                        §   No. 696, 2014
        Defendant Below,                §
        Appellant,                      §
                                        §   Court Below—Superior Court
        v.                              §   of the State of Delaware,
                                        §   in and for Sussex County
STATE OF DELAWARE,                      §   Cr. ID No. 1209017747
                                        §
        Plaintiff Below,                §
        Appellee.                       §

                           Submitted: June 1, 2015
                           Decided:   June 25, 2015
                           Revised:   June 29, 2015

Before HOLLAND, VALIHURA, and VAUGHN, Justices.

                                 ORDER

        This 25th day of June, 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)    On November 5, 2012, Jason Lineweaver was indicted on multiple

charges arising from a home invasion in which Lineweaver and two other people

broke into a home, beat and tied up the homeowner, and stole firearms. On April

17, 2013, Lineweaver pled guilty to Possession of a Firearm During Commission

of a Felony (“PFDCF”), Assault in the Second Degree, Home Invasion, and

Possession of a Deadly Weapon by a Person Prohibited (“PDWBPP”). On June
28, 2013, Lineweaver was sentenced to a total of forty-six years of Level V

incarceration, suspended after fifteen years for decreasing levels of supervision.

Lineweaver did not appeal the Superior Court’s judgment.

      (2)   On January 10, 2014, Lineweaver filed his first motion for

postconviction relief under Superior Court Criminal Rule 61 (“Rule 61”). In this

motion, Lineweaver argued that his former counsel (“Former Counsel”) was

ineffective because: (i) he refused to obtain Lineweaver’s mental health records,

which might have contained information that could be used in a motion to suppress

Lineweaver’s statement to the police; and (ii) he did not file a motion to suppress

Lineweaver’s statement to the police based on Lineweaver being under the

influence of psychiatric medication at the time of his statement. Postconviction

counsel (“Postconviction Counsel”) was appointed to represent Lineweaver.

      (3)   Former Counsel submitted an affidavit in response to Lineweaver’s

motion for postconviction relief. Former Counsel stated that Lineweaver never

asked him to obtain psychiatric records for use in his defense. Former Counsel

further stated that his communications with Lineweaver and his family were

primarily focused on Lineweaver’s drug addiction. As to a motion to suppress,

Former Counsel stated that he discussed such a motion with Lineweaver, but

Former Counsel did not believe a motion to suppress was viable because

Lineweaver did not appear under the influence at the time of his statement. Even if



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Lineweaver’s statement had been suppressed, Former Counsel noted that

Lineweaver’s co-defendants made statements implicating Lineweaver.

         (4)    On August 8, 2014, Postconviction Counsel informed the Superior

Court that Lineweaver wished to proceed with his motion for postconviction relief.

Postconviction Counsel also amended Lineweaver’s motion to include a claim that

Lineweaver’s mental health records could have had a mitigating effect on

Lineweaver’s sentence. Postconviction Counsel subsequently filed a motion to

withdraw as Lineweaver’s counsel under Rule 61(e)(2). Postconviction Counsel

stated he reviewed the record and did not find any evidence of ineffective

assistance by Former Counsel.

         (5)    In a letter dated November 26, 2014, the Superior Court denied

Lineweaver’s motion for postconviction relief. The Superior Court found that

Former Counsel and Lineweaver discussed the pros and cons of a motion to

suppress and Former Counsel made a strategic decision not to file a motion to

suppress.      As to Lineweaver’s claim regarding his mental health records, the

Superior Court noted that no mental health records were offered to support

Lineweaver’s claim. The Superior Court concluded that Lineweaver failed to

establish his Former Counsel’s representation “fell below an objective standard of

reasonableness” under Strickland v. Washington.1 This appeal followed.


1
    466 U.S. 668, 688 (1984).


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         (6)     On appeal, Postconviction Counsel filed a brief and a motion to

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

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

no arguably appealable issues. Postconviction Counsel represents that he provided

Lineweaver with a copy of the motion to withdraw and the accompanying brief and

informed Lineweaver of his right to identify any points he wished this Court to

consider on appeal. Lineweaver has not identified any points for this Court to

consider. The State has responded to the Rule 26(c) brief and moved to affirm the

Superior Court’s judgment.

         (7)     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

conscientious examination of the record and the law for arguable claims; and (ii)

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.2

         (8)     This Court has reviewed the record carefully and has concluded that

Lineweaver’s appeal is wholly without merit and devoid of any arguably

appealable issue. We also are satisfied that Lineweaver’s counsel has made a



2
    Penson v. Ohio, 488 U.S. 75, 83 (1988); Leacock v. State, 690 A.2d 926, 927-28 (Del. 1996).



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conscientious effort to examine the record and the law and has properly determined

that Lineweaver 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/ Karen L. Valihura
                                              Justice




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