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Moore v. State1/9/2002
Submitted: December 10, 2001
ORDER
This 9th day of January 2002, 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) The defendant-appellant, Thomas L. Moore, filed this appeal from the Superior Court's sentence for Moore's second violation of probation (VOP). Moore's counsel on appeal has filed a brief and a motion to withdraw pursuant to Rule 26(c). Moore's counsel asserts that, based upon a complete and careful examination of the record, there are no arguably appealable issues. By letter, Moore's attorney informed him of the provisions of Rule 26(c) and provided Moore with a copy of the motion to withdraw and the accompanying brief. Moore also was informed of his right to supplement his attorney's presentation. Moore raised several issues for this Court's consideration. The State responded to the position taken by Moore's counsel as well as the points raised by Moore and moved to affirm the Superior Court's decision. After considering the parties' submissions, the Court requested supplemental responses from Moore's counsel and the State regarding one of Moore's points.
(2) The standard and scope of review applicable to the consideration of a motion to withdraw and an accompanying brief under Rule 26(c) is twofold: (a) this Court must be satisfied that defense counsel has made a conscientious examination of the record and the law for arguable claims; and (b) this 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.
(3) The record reflects that in 1999 Moore pleaded guilty, among other things, to his fifth offense for driving under the influence . The Superior Court sentenced Moore, effective January 7, 2000, to three years at Level V imprisonment, suspended after serving six months for two and a half years at Level IV residential drug treatment, suspended after successful completion of drug treatment for probation. In September 2000, the Superior Court found Moore in violation of probation and sentenced him to two and a half years at Level V imprisonment suspended entirely for two and a half years at Level IV Recovery Center of Delaware (RCD), suspended upon successful completion of the RCD program for probation. On January 6, 2001, the day he was released, Moore was arrested for violating probation by committing new charges, including second degree assault.
(4) At a contested VOP hearing held on June 7, 2001, Officer Jennifer Bunora of the New Castle County Police Department testified that she was dispatched to the scene of a single car accident on the afternoon of January 6, 2001. As she approached the scene, an ambulance worker flagged her down. The ambulance worker informed Officer Bunora that the passenger of the car had been taken to the hospital. The ambulance worker pointed out the driver of the car, who turned out to be Moore. Moore was walking away from the scene of the accident coming toward them. Officer Bunora activated her emergency equipment. She asked Moore to stop. Moore asked if he was under arrest. Officer Bunora testified that she told Moore he was not under arrest but that he was being detained while she investigated the accident. Officer Bunora testified that she detected the odor of alcohol on Moore. Despite being told to stop, Moore continued to walk away. Officer Bunora instructed Moore to come to her vehicle. Moore refused and sat down in the road on a cooler that he had been carrying. Eventually Moore attempted to walk away from Officer Bunora desp
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