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Vincent v. State11/17/2004
Submitted: July 26, 2004
ORDER
This 17th day of November 2004, upon consideration of the appellant's brief filed pursuant to Supreme Court Rule 26(c), his attorney's motion to withdraw, and the State's response thereto, it appears to the Court that:
(1) On January 25, 2004, the appellant, Joseph T. Vincent was arrested for Driving Under the Influence (4th offense) ("DUI"). In February 2004, Vincent was charged with violation of probation ("VOP") with respect to three guilty plea convictions: (i) Vehicular Assault, (ii) Driving Under the Influence, Resisting Arrest, Unauthorized Use of a Vehicle, and (iii) two counts of Forgery in the Second Degree and DUI.
(2) On February 20, 2004, the Superior Court found Vincent guilty of VOP and resentenced him to a total of five years and three months at mandatory Level V incarceration, with credit for time served. This is Vincent's appeal.
(3) Vincent's trial counsel has filed a brief and a motion to withdraw pursuant to Supreme Court Rule 26(c). The Court's standard and scope of review is twofold. First, the Court must be satisfied that defense counsel has made a conscientious examination of the record and the law for claims that could arguably support the appeal. Second, the Court 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.
(4) Vincent's counsel asserts that, based upon a careful and complete examination of the record, there are no arguably appealable issues. By letter, Vincent's counsel informed him of the provisions of Supreme Court Rule 26(c) and provided him with a copy of the motion to withdraw and the Rule 26(c) brief. Vincent was also informed of his right to supplement his attorney's presentation. Vincent responded with a submission that raises several issues for this Court's consideration. The State has responded to the position taken by Vincent's counsel as well as to the issues raised by Vincent and has moved to affirm the Superior Court's judgment.
(5) Vincent was charged with VOP on the bases that he (a) failed to report the January 2004 DUI arrest, (b) failed to report a change of residence, (c) failed to abide by a curfew, and (d) consumed intoxicating substances. At the VOP hearing, Vincent admitted that he was guilty ( namely of having failed to "report" and of having consumed intoxicating substances), but he offered an explanation, i.e., that he was an alcoholic, and he requested leniency in sentencing.
(6) On appeal from his VOP conviction and sentence, Vincent alleges that he proceeded without the assistance of his counsel because he was denied the opportunity to speak to counsel before the VOP hearing and because counsel was unfamiliar with his case. Vincent's claim is without merit. The record is clear that Vincent was represented by counsel at the hearing. To the extent Vincent raises ineffective assistance of counsel, this claim was not raised in the Superior Court and thus may not be raised for the first time in this appeal.
(7) Vincent alleges that the Superior Court "presumed" that he was guilty and "manufactured" the case against him. Vincent's claims are not supported by the record. Indeed, it was Vincent's admissions of guilt that corroborated several of the allegations contained in the VOP report and provided an adequate basis to support the Superior Court's decision to revoke probation.
(8) Vincent makes a number of claims with respect to the VOP sentence. First, he contends that the sentence was excessive in that it was based upon (a) an alleged "technical viol
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