        IN THE SUPERIOR COURT OF THE STATE OF DELAWARE


CHARLES J. DEROSE,                            )
                                              )
               Defendant-Below,               )
               Appellant                      )
                                              )
       v.                                     )      ID. No. 1210014598
                                              )
                                              )
STATE OF DELAWARE,                            )
                                              )
               Plaintiff-Below,               )
               Appellee.                      )


                                 Submitted: January 4, 2016
                                  Decided: January 8, 2016


                                            ORDER

      Upon Appeal from the Court of Common Pleas of the State of Delaware
                         in and for New Castle County,
                                  AFFIRMED

       This 8thday of January, 2016, upon consideration of the Appellant Charles

J.Derose’s brief filed under Supreme Court Rule 26(c) (“Rule 26(c)”) (made

applicable to here via Superior Court Criminal Rule 57(d)) 1, his attorney’s motion

to withdraw, the State’s response, and the record in this case, it appears to the

Court that:

1
        Super. Ct. Crim. R. 57(d) (“In all cases not provided for by rule or administrative order,
the court shall regulate its practice in accordance with the applicable Superior Court civil rule or
in any lawful manner not inconsistent with these rules or the rules of the Supreme Court.”).
      (1)     The defendant, Charles DeRose, was charged by Information in the

Court of Common Pleas with one count of Driving Under the Influence of Alcohol

on November 4, 2014.

      (2)     The evidence at trial demonstrated that late in the evening of

September 22, 2012, a witness, John Joswick, observed DeRose driving his vehicle

at a high rate of speed on East Ayre Street in Wilmington, Delaware. 2DeRose

failed to stop at a stop sign, hit the curb on the right side of the road, and then hit a

car parked on the sidewalk on the left side of the road.3 The impact pushed the

parked vehicle into two other parked vehicles. 4Mr. Joswick stated that when he

checked on him, DeRose was incoherent and smelled very strongly of

alcohol. 5New Castle County Police Officer Maura Schultz testified that she found

multiple open and empty beer bottles in DeRose’s vehicle.6 And when Officer

Schultz interviewed him at the hospital, DeRose smelled of alcohol. 7

      (3)     Following a jury trial in the Court of Common Pleas, DeRose was

found guilty of Driving Under the Influence of Alcohol. DeRose’s defense at trial

2
      See C.C.P. Trial Tr. at 30, 37-38.
3
      Id. at 30, 32-33.
4
      Id. at 34.
5
      Id. at 35-36.
6
      Id. at 21-22.
7
      Id. at 23.
                                           -2-
was that his brakes may have failed, that he blacked out and suffered memory loss

of the crash. This is DeRose’s direct appeal.

       (4)    This Court takes criminal appeals from the Court of Common

Pleas. 8Such appeals are “reviewed on the record,” not “tried de novo.” 9In that way,

this Court “functions in the same manner as the Supreme Court, in its position as

an intermediate appellate court, when considering an appeal from the Court of

Common Pleas.”10

       (5)    DeRose’s counsel on appeal (“Counsel”) has filed a brief and motion

to withdraw pursuant to Supreme Court Rule 26(c).Counsel asserts that, based

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

appealable issues.

       (6)    When considering a brief filed pursuant to Rule 26(c), the Court must

be satisfied that defense counsel made a conscientious examination of the record

and the law for claims that could arguably support the appeal. 11 The Court must

also conduct its own review of the record and determine whether the appeal is so

8
       DEL. CODE ANN. tit 11, § 5301(c) (2015).
9
       Id.
10
        Layne v. State, 2006 WL 3026236, at *1 (Del. Super. Ct. Sept. 26, 2006) (citing Dickens
v. State, 2003 WL 22172737, at *3 (Del. Super. Ct. July 11, 2003)); see also Baker v. Connell,
488 A.2d 1303, 1309 (Del. 1985) (Superior Court function as intermediate appellate court is
basically the same as the Supreme Court).
11
       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).
                                             -3-
totally devoid of at least arguably appealable issues that it can be decided without

an adversary presentation.12

      (7)    DeRose filed his notice of appeal to this Court on August 4, 2015.

Counsel filed a motion to withdraw with an accompanying brief and appendix

pursuant to Supreme Court Rule 26(c) on December 8, 2015.13DeRose was

informed that he had a right to respond to the motion to withdraw and to

supplement the Rule 26(c) brief.

      (8)    DeRose’s supplement to the opening brief challenges the sufficiency

of the evidence. Specifically, DeRose claims that Mr. Joswick and Officer Shultz

were biased and that their trial testimony was inconsistent.           The State has

responded to DeRose’s claims as well as the position taken by Counsel. The Court

treats the State’s response as a motion to affirm the Court of Common Pleas’s

judgment.

      (9)    When reviewing a claim of insufficient evidence, this Court must

determine whether, after reviewing the evidence in the light most favorable to the

prosecution, any rational trier of fact could have found the essential elements of the

crime beyond a reasonable doubt.14 When making that determination the Court


12
      Id.
13
      The appendix includes a copy of the complete trial transcript.
14
      Poon v. State, 880 A.2d 236, 238 (Del. 2005).

                                             -4-
makes no distinction between direct and circumstantial evidence. 15 Moreover,

when the determination of facts turns on a question of credibility of a witness, this

Court will not substitute its opinion for that of the trier of fact. 16

       (10) DeRosewas charged with and convicted of Driving a Vehicle Under

the Influence of Alcohol in violation of title 21, Section 4177(a)(1) of the

Delaware Code.17Under § 4177(a)(1), “[n]o person shall drive a vehicle . . . when

the person is under the influence of alcohol.” 18The State, therefore, had the burden

to prove two elements: 1) that the defendant was driving; and 2) that the defendant

was under the influence of alcohol while driving. 19 Under Delaware law one

drives “while under the influence” when “the person is, because of alcohol . . . less

able than the person would ordinarily have been, either mentally or physically, to

exercise clear judgment, sufficient physical control, or due care in the driving of a

vehicle.”20 In this case, the evidence adduced at trial clearly was sufficient to

sustain DeRose’s conviction. The jury was solely responsible for judging the


15
       Id. (citing Skinner v. State, 575 A.2d 1108, 1121 (Del. 1990)).
16
       Id.
17
       SeeDEL. CODE ANN. tit. 21, § 4177(a)(1) (2012) (governing driving a vehicle under the
influence).
18
       Del. Code Ann. tit 21, § 4177(a)(1) (2013).
19
       Church v. State, 2010 WL 5342963, at *2 (Del. Dec. 22, 2010).
20
       Del. Code Ann. tit 21, § 4177(c)(10) (2013).

                                               -5-
credibility of the witnesses and resolving conflicts in the testimony. 21 It was

entirely within the jury’s purview to credit the trial testimony of Joswick and

Officer Schultz regarding DeRose’s physical and mental state at the time of his

accident.22

       (11) After carefully reviewing the record, the Court has concluded that

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

issue. The Court is satisfied that Counsel made a conscientious effort to examine

the record and properly determined that DeRose could not raise a meritorious

claim in this appeal.

       NOW THEREFORE, IT IS ORDERED that the State’s motion to affirm

is GRANTED. The judgment of the Court of Common Pleas is AFFIRMED.

The motion to withdraw is MOOT.

                             SO ORDERED this 8thday of January, 2016.



                             PAUL R. WALLACE, JUDGE

Original to Prothonotary

cc:    Kester I.H. Crosse, Esquire
       Amanda J. DiLiberto, Deputy Attorney General


21
       Tyre v. State, 412 A.2d 326, 330 (Del. 1980).
22
       Kelly v. State, 2005 WL 940899, at *1 (Del. Apr. 22, 2005) (citing Tyre v. State, 412
A.2d 326, 330 (Del. 1980)).
                                              -6-
