           IN THE SUPREME COURT OF THE STATE OF DELAWARE

DEON HIGGIN,                            §
                                        §     No. 586, 2016
      Defendant Below,                  §
      Appellant,                        §     Court Below—Superior Court of the
                                        §     State of Delaware
      v.                                §
                                        §     Cr. ID No. 1512000326 (N)
STATE OF DELAWARE,                      §
                                        §
      Plaintiff Below,                  §
      Appellee.                         §

                             Submitted: May 24, 2017
                             Decided:   July 18, 2017

Before STRINE, Chief Justice; VALIHURA and VAUGHN, Justices.

                                      ORDER

      This 18th 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 November 10, 2016, a Superior Court jury convicted the appellant,

Deon Higgin, of Possession of a Deadly Weapon by a Person Prohibited. On

December 2, 2016, the Superior Court sentenced Higgin to three years of mandatory

imprisonment with no probation to follow. This is Higgin’s direct appeal.

      (2)    Higgin’s counsel on appeal has filed a no-merit 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. By letter, Higgin’s counsel provided him with a copy of the motion to

withdraw, the no-merit brief and appendix in draft form, and a letter informing

Higgin that he had the right to supplement the brief with written points. Higgin has

not raised any issues for the Court’s consideration. The State has responded to the

no-merit brief submitted by Higgin’s counsel and has moved to affirm the Superior

Court’s judgment.

       (3)    When reviewing a motion to withdraw and an accompanying brief

under Rule 26(c), this Court must be satisfied that the appellant’s counsel has made

a conscientious examination of the record and the law for arguable claims.1 The

Court also 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.”2

       (4)    The Court has reviewed the record and concluded that, with respect to

Higgin’s criminal conviction, this appeal is wholly without merit and devoid of any

arguably appealable issue. As for Higgin’s sentence, however, the Court has

identified an error.

       (5)    Under 11 Del. C. § 4204(l), when the Superior Court imposes a period

of Level V incarceration for one year or more, the court is required to impose a


1
  Penson v. Ohio, 488 U.S. 75, 83 (1988); McCoy v. Court of Appeals of Wisconsin, 486 U.S. 429,
442 (1988); Anders v. California, 386 U.S. 738, 744 (1967).
2
  Penson v. Ohio, 488 U.S. at 82.
                                              2
period of custodial supervision at a lower level of supervision “to facilitate the

transition of the individual back into society.”3 In Higgin’s case, the three-year

Level V sentence imposed on December 2, 2016, does not include the statutorily

mandated transition period. For that reason, we must vacate the sentence and remand

this matter for a new sentencing hearing, on notice, with Higgin and his defense

counsel present.4

         NOW, THEREFORE, IT IS ORDERED that:

         A.      The State’s motion to affirm is GRANTED IN PART. The Superior

Court’s judgment of conviction is AFFIRMED.

         B.      The sentence imposed on December 2, 2016 is VACATED. This

matter is REMANDED to the Superior Court for a new sentencing hearing on notice

to the parties with Higgin and his defense counsel present. Jurisdiction is not

retained.

                                              BY THE COURT:


                                              /s/ Karen L. Valihura
                                                     Justice




3
    11 Del. C. § 4204(l).
4
    Nave v. State, 783 A.2d 120, 121 (Del. 2001).
                                                    3
