             IN THE SUPREME COURT OF THE STATE OF DELAWARE

HAKEEM WATSON,                        §
                                      §      No. 157, 2018
        Defendant Below,              §
        Appellant,                    §      Court Below: Superior Court of the
                                      §      State of Delaware
        v.                            §
                                      §      Cr. ID No. 1702010799 (N)
STATE OF DELAWARE,                    §
                                      §
        Plaintiff Below,              §
        Appellee.                     §

                           Submitted: August 6, 2018
                           Decided:   October 25, 2018

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

                                    ORDER

        Having considered the no-merit brief and motion to withdraw filed by the

appellant’s trial counsel under Supreme Court Rule 26(c), the appellant’s written

points, the State’s response, and the Superior Court record, it appears to the Court

that:

        (1)    This is Hakeem Watson’s direct appeal from his conviction and

sentencing. At the conclusion of a non-jury trial, the Superior Court found Watson

guilty of Possession of a Firearm by a Person Prohibited, Possession of Ammunition

by a Person Prohibited, Carrying a Concealed Deadly Weapon, Assault Second

Degree, Resisting Arrest, Criminal Impersonation, and Possession of Drug

Paraphernalia. Watson was found not guilty of Drug Dealing and Possession of a
Firearm During the Commission of a Felony. On March 9, 2018, the Superior Court

sentenced Watson, effective February 16, 2017, to a lengthy period of

incarceration—thirty-two years total—but suspended all but five years, followed by

six months at Level IV and concurrent probation at Levels III and I.

       (2)     Watson’s criminal prosecution arose from events occurring at 905

North Lombard Street, a private residence in Wilmington, when Operation Safe

Streets police and probation officers arrived at the residence to check on the status

of a Level IV probationer, Khalil Ameer-Bey, who was on home confinement there.

Watson and several other people were in the house, on the first floor, when the

officers arrived. Watson answered the door.

       (3)     Upon entering the house, the officers noticed a strong odor of

marijuana. Therefore, while one officer went upstairs to look for the probationer

and another officer checked the rest of the house and the basement, Detective Rosaio

remained on the first floor of the house with Watson and the other people and began

“collecting names.”1

       (4)     Watson gave Detective Rosaio the name “Jeremiah Watson.” Not

surprisingly, when Detective Rosaio ran the name “Jeremiah Watson” through the


1
  Trial Tr. at 49 (Nov. 7, 2017). Detective Rosaio testified that “collecting names” is “a common
practice” and that, even though the individuals in the house were not being arrested, “because of
the odor of marijuana,” he was “anticipating what is known as an administrative search of the
residence where subjects would need to be identified and the investigation in the odor of marijuana
would continue.”
                                                2
DELJIS2 database on his mobile device, he found that the photograph associated

with that name did not resemble Watson. When confronted by Detective Rosaio,

Watson explained that he thought the Detective had asked for the name of Watson’s

brother. At that, Detective Rosaio told Watson that he was placing him under arrest

for criminal impersonation. During a search incident to the arrest, Detective Rosaio

discovered a gun tucked into the front waistband of Watson’s pants and fourteen

Alprazolam pills wrapped in paper and tucked into a small coin pocket.3

         (5)    In his first claim on appeal, Watson contends that the officers violated

his right to be free from unreasonable searches and seizures when they prevented

him from leaving the North Lombard Street residence and when Detective Rosaio

asked him for his name. According to Watson, because he was on his way out of

the residence when the officers arrived and had done nothing to arouse their

suspicions, the officers had no right to keep him from leaving or to ask him any

questions. In his second claim on appeal, Watson contends that his trial counsel’s

failure to file a motion to suppress the gun and drug evidence seized by Detective

Rosaio constituted ineffective assistance of counsel.




2
    DELJIS is an acronym for the Delaware Criminal Justice Information System.
3
    Alprazolam is a controlled substance equivalent to Xanax.
                                                3
       (6)     Because Watson did not raise his first claim in the Superior Court, we

review the claim for plain error.4 Watson’s first claim is not supported by the record

and is otherwise without merit. Detective Rosaio testified that the officers “didn’t

tell [Watson and the others] in the beginning that they had to stay.” 5 In view of the

Detective’s testimony describing the odor of marijuana when he entered the

residence, we cannot conclude that Detective Rosaio exceeded his authority when

he asked Watson and the other people for their names.6

       (7)     As for Watson’s ineffective counsel claim, we decline to consider the

claim in this appeal. As a general rule, we will not consider a claim of ineffective

assistance of counsel on direct appeal when, as in Watson’s case, the claim was not

raised in the Superior Court in the first instance.7 Typically, an ineffective counsel

claim is pursued through a motion for postconviction relief under Superior Court

Criminal Rule 61 and is adjudicated on the basis of the record developed during the

postconviction proceeding.8




4
  Plain error review “is limited to material defects which are apparent on the face of the record,
which are basic, serious and fundamental in their character, and which clearly deprive an accused
of a substantial right, or which clearly show manifest injustice.” Wainwright v. State, 504 A.2d
1096, 1100 (Del. 1986).
5
  Trial Tr. at 64 (Nov. 7, 2017).
6
  Cf. Fowler v. State, 2016 WL 5853434, at **1 (Del. Sept. 29, 2016) (holding that the Superior
Court did not err when finding that the smell of marijuana constituted probable cause).
7
  Desmond v. State, 654 A.2d 821, 829 (Del. 1994).
8
  Id.
                                                4
       (8)    Finally, the record reflects an error in the date of the Superior Court’s

sentence order. The error should be corrected. Watson was sentenced on March 9,

2018, not January 26, 2018, as reflected in the sentence order. Therefore, we will

remand this matter to the Superior Court for the limited purpose of issuing a

corrected sentence order.

       (9)    When considering a Rule 26(c) brief and an accompanying motion to

withdraw, we must be satisfied that the appellant’s counsel has made a conscientious

examination of the record and the law for claims that could arguably support the

appeal.9 Also, we must conduct our own review of the record to determine whether

the appeal is so totally devoid of at least arguably appealable issues that it can be

decided without an adversary presentation.10 In this case, having carefully reviewed

the record, we conclude that Watson’s appeal from his criminal convictions is

“wholly without merit” and devoid of any issue appropriate for review on direct

appeal.11 Also, we are satisfied that Watson’s trial counsel made a conscientious

effort to examine the record and the law and properly determined that Watson could

not raise a meritorious claim on appeal.




9
  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).
10
   Penson v. Ohio, 488 U.S. at 82.
11
   Del. Sup. Ct. R. 26(c).
                                              5
          NOW, THEREFORE, IT IS ORDERED that this matter is REMANDED to

the Superior Court to issue a corrected sentence order.12 In all other aspects, the

judgment of the Superior Court is AFFIRMED. The motion to withdraw is moot.

                                            BY THE COURT:
                                            /s/ Leo E. Strine, Jr.
                                            Chief Justice




12
     Jurisdiction is not retained.
                                        6
