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Koester v. State10/6/2000
Submitted: August 29, 2000
ORDER
This 6th day of October 2000, 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) The defendant-appellant, Mark R. Koester, was found guilty by a Superior Court jury of driving under the influence , driving after judgment prohibited and failure to stop at a stop sign. On the charge of driving under the influence, Koester was sentenced to 5 years incarceration at Level V, with credit for time served, to be suspended after 2 years and successful completion of the Key Program for 12 months at Level IV (Crest Program). Following successful completion of that program, Koester was to be placed at Level III (Aftercare Program) for a period of 2 years. On the charge of driving after judgment prohibited, Koester was sentenced to 30 months incarceration at Level V, to be suspended after 90 days and successful completion of the Key and Crest Programs for 30 months at Level III (Aftercare Program). On the charge of failure to stop at a stop sign, Koester did not receive a prison sentence. This is Koester's direct appeal.
(2) Koester's counsel has filed a brief and a motion to withdraw pursuant to Rule 26(c). 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) 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; and (b) 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.
(3) Koester's counsel asserts that, based upon a careful and complete examination of the record, there are no arguably appealable issues. By letter, Koester's counsel informed Koester of the provisions of Rule 26(c) and provided him with a copy of the motion to withdraw, the accompanying brief and the complete trial transcript. Koester was also informed of his right to supplement his attorney's presentation. Koester responded with a submission that raises four issues for this Court's consideration. The State has responded to the position taken by Koester's counsel as well as the issues raised by Koester and has moved to affirm the Superior Court's judgment.
(4) Koester raises four issues for this Court's consideration. Koester claims that: i) the prosecutor violated the Superior Court's order not to speak to the jury about his statement at the accident scene; ii) the State's witnesses offered conflicting versions of the events leading to his arrest; iii) the State's witnesses improperly discussed their testimony outside the courtroom before they took the stand; and iv) he received ineffective assistance of counsel, consisting of counsel's failure to: retrieve 911 phone calls, correctly inform him of his probable sentence upon a finding of guilt; object to the testimony of the State's witnesses; consult with him before trial about his defense; properly cross-examine the State's witnesses; and allow him to testify fully at trial.
(5) Koester's first claim is that the prosecutor spoke to the jury about his statement at the accident scene in violation of the Superior Court's order. Prior to trial, the Superior Court judge ruled that a portion of Koester's statement was inadmissible and instructed the prosecutor to advise the State's witnesses about this restriction. The record reflects that the prosecutor did so and there was no testimony elicited by the
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