      IN THE SUPREME COURT OF THE STATE OF DELAWARE

LAVAR W. HALL,                           §
                                         §   No. 234, 2015
      Defendant Below-                   §
      Appellant,                         §
                                         §
      v.                                 §   Court Below—Superior Court
                                         §   of the State of Delaware,
STATE OF DELAWARE,                       §   Cr. ID 1408016850
                                         §
      Plaintiff Below-                   §
      Appellee.                          §

                           Submitted: November 12, 2015
                            Decided: January 12, 2016

Before HOLLAND, VALIHURA, and VAUGHN, Justices.

                                  ORDER

      This 12th day of January 2016, upon consideration of the appellant’s

Supreme Court Rule 26(c) brief, his attorney’s motion to withdraw, and the

State’s response thereto, it appears to the Court that:

      (1)    After a one-day bench trial in January 2015, the defendant-

appellant, Lavar Hall, was convicted of Burglary in the Third Degree and

Theft. On April 24, 2015, the State filed a motion to declare Hall to be a

habitual offender. That same day, the Superior Court sentenced Hall as a

habitual offender to a total period of four years at Level V incarceration,

with credit for 245 days previously served, to be suspended after serving

three years in prison for probation. This is Hall’s direct appeal.
      (2)    Hall’s counsel on appeal has filed a brief and a motion to

withdraw under Rule 26(c).         Hall’s counsel asserts that, based upon a

complete and careful examination of the record, there are no arguably

appealable issues. By letter, Hall’s attorney informed him of the provisions

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

the accompanying brief. Hall also was informed of his right to supplement

his attorney’s presentation.      Hall filed several points for this Court’s

consideration. The State has responded to Hall’s points, as well as to the

position taken by Hall’s counsel, and has moved to affirm the Superior

Court’s judgment.

      (3)    This Court’s review of a motion to withdraw and an

accompanying brief under Rule 26(c) is twofold: (i) we must be satisfied

that defense counsel has made a conscientious examination of the record and

the law for arguable claims; and (ii) we must conduct our 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

      (4)    In this case, the trial record fairly reflects that, around 3 AM on

the morning of August 12, 2014, someone broke into the offices of Jungle
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
Jim’s amusement park in Rehoboth Beach, Delaware and stole a television

from the employee lounge. The owner of Jungle Jim’s knew Hall because

the two had gone to high school together. The owner was able to identify

Hall as the perpetrator from the park’s surveillance video, which showed

Hall climbing the fence and stealing the television. Hall confessed to the

crime following his arrest and also admitted his guilt when he took the stand

at trial.

         (5)     Hall’s issues on appeal relate solely to his sentencing. First, he

contends that he did not receive adequate notice of the State’s habitual

offender motion. Second, he asserts that he should not have been declared a

habitual offender because his prior criminal convictions were not qualifying

predicate convictions under the habitual offender statute and because his

most recent conviction for third degree burglary is not a qualifying offense

for habitual offender status.

         (6)     We find no merit to either claim. The transcript of Hall’s trial

reflects that the State indicated on the record that Hall qualified for habitual

offender sentencing under 11 Del. C. § 4214(a) and that the State intended to

seek habitual offender sentencing. Under § 4215(b), the State was only

required to file its motion “after conviction and before sentence.”2 Although

2
    11 Del. C. § 4215(b) (2007).


                                          3
the State filed its habitual offender motion on the same day as sentencing,

the motion was filed “before sentence” under Section 4215(b). Moreover,

the Superior Court considered the State’s documentary evidence regarding

Hall’s prior convictions before sentencing him.3 Hall had the opportunity to

address the Court prior to the imposition of sentence. Hall did not raise a

due process claim or challenge the State’s evidence in support of its habitual

offender motion in any way. Under the circumstances, we find no merit to

Hall’s due process claim on appeal.

         (7)     Moreover, Hall’s claim that neither his prior felony convictions

nor his most recent conviction for third degree burglary are qualifying

offenses for habitual offender sentencing under 11 Del. C. § 4214(a) is

simply incorrect. Section 4214(a) provides that “[a]ny person who has been

3 times convicted of a felony … under the laws of this State, and/or any

other state … who shall thereafter be convicted of a subsequent felony of

this State is declared to be an [sic] habitual offender….”4 Hall was not

sentenced under Section 4214(b), as he seems to argue. Thus, his qualifying

felonies were not limited to those identified in that subsection. All of Hall’s

prior felony convictions in this case qualified as predicate offenses under


3
    Hall v. State, 788 A.2d 118, 128 (Del. 2001).
4
    11 Del. C. § 4214(a) (2007).


                                              4
Section 4214(a), as well as his most conviction for third degree burglary.

His claim to the contrary has no merit.

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

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

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

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

determined that Hall 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




                                      5
