Shockley v. State ( 2016 )

IN THE SUPREME COURT OF THE STATE OF DELAWARE
JAWAUN SHOCKLEY, §
§ No. 100, 2016
Defendant Below, §
Appellant, § Court Below–Superior Court of
§ the State of Delaware
v. §
§ Cr. ID No. 1410001319
STATE OF DELAWARE, §
§
Plaintiff Below, §
Appellee. §
Submitted: August 19, 2016
Decided: November 10, 2016
Before STRINE, Chief Justice; VAUGHN, and SEITZ, Justices.
ORDER
This 10th day of November 2016, having considered the no-merit brief and
motion to withdraw filed by the appellant’s counsel, and the response filed by the
State of Delaware, it appears to the Court that:
(1) During the afternoon of October 2, 2014, Wilmington police officers
patrolling in the area of 6th and Tatnall Streets in downtown Wilmington stopped
their patrol vehicle when they observed the appellant, Jawaun Shockley, standing
in front of a residence on 6th Street. The officers knew that there was a court order
for Shockley’s arrest. When Shockley saw one of the officers exiting the patrol
vehicle, he took off running. After a brief chase, one officer apprehended
Shockley, tasering him when doing so, while the other officer recovered a weapon
Shockley had discarded during the chase. In a search of Shockley incident to his
arrest, the police recovered drugs, cash, and two cell phones.
(2) Shockley’s arrest led to his indictment on several drug and weapon
offenses and other related offenses. After a two-day trial in October 2015, a
Superior Court jury convicted Shockley of several counts in the indictment. At the
February 19, 2016 sentencing, the Superior Court imposed seventeen years at
Level V incarceration suspended, after serving six years and six months, for
decreasing Levels of supervision. The court also ordered that Shockley
“participate” in a Level V drug treatment program.1 This is Shockley’s direct
appeal.
(3) On appeal, Shockley’s Trial Counsel has filed a no-merit brief and a
motion to withdraw under Supreme Court Rule 26(c). Trial Counsel asserts that,
based upon a complete and careful examination of the record, there are no arguably
appealable issues in Shockley’s case. Trial Counsel has advised the Court that he
provided Shockley with a copy of the motion to withdraw, the no-merit brief and
appendix in draft form, and a letter requesting that Shockley send him written
points for the Court’s consideration. In response to Trial Counsel’s letter,
1
Sentencing Tr. at 7 (Feb. 19, 2016).
2
Shockley submitted a two-page list of “things to appeal,” which Trial Counsel
included with the brief. The State has responded to the no-merit brief, Shockley’s
submission, and has moved to affirm the Superior Court’s judgment.
(4) When reviewing a motion to withdraw and an accompanying brief
under Rule 26(c), this Court must be satisfied that the appellant’s counsel has made
a conscientious examination of the record and the law for arguable claims.2 Also,
the Court must conduct its own review of the record and determine “whether the
appeal is indeed so frivolous that it may be decided without an adversary
presentation.”3
(5) In his written submission on appeal, Shockley asks the Court to
review a discovery violation committed by the State. The discovery violation,
which the State conceded at trial, concerned a forfeiture form signed by Shockley.
When Trial Counsel objected to the form’s admission into evidence because it
should have been provided in discovery and was not, the Superior Court ruled that
Shockley’s signature on the form had to be redacted before the form would be
admitted. As a result of the ruling, the State decided not to introduce the form.
2
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
Penson v. Ohio, 488 U.S. at 81.
3
Under these circumstances, there was no prejudice to Shockley from the discovery
violation.4
(6) Next, Shockley points to an “unreported sidebar” as a basis for appeal.
The sidebar in question was taken on the first day of trial when the prosecutor
requested permission to approach the bench to discuss scheduling. Having
reviewed the record, we are satisfied that the unreported sidebar did not result in
prejudice to Shockley’s rights.5
(7) Shockley next claims that his tasering by the police was unwarranted
and constituted excessive force. Shockley does not explain, and the record does
not reflect, how the police officer’s use of the taser when apprehending Shockley is
relevant to the criminal convictions on appeal. Consequently, Shockley’s
excessive force claim has no apparent bearing in the appeal.
(8) Finally, Shockley claims that his Trial Counsel’s failure to object to
certain evidence at trial constituted ineffective assistance of counsel. The claims
are unavailing. This Court has consistently held that it will not consider claims of
ineffective assistance of counsel on direct appeal.6
4
Service v. State, 2015 WL 1234489, at *3 (Del. Mar. 17, 2015) (citing Taylor v. State, 982 A.2d
279, 283 (Del. 2008)).
5
Chattin v. State, 2011 WL 987752, at *3 (Del. Mar. 21, 2011) (citing Jensen v. State, 482 A.2d
105, 119 (Del. 1984)).
6
Desmond v. State, 654 A.2d 821, 829 (Del. 1994).
4
(9) Having carefully reviewed the record, the Court concludes that
Shockley’s appeal from his criminal convictions is “wholly without merit”7 and
devoid of any arguably appealable issue.8 As for Shockley’s sentence, however,
the Court has determined that the sentence must be clarified to address two
anomalies noted in the record. First, the written sentence order included in the
record does not include the provision imposed at sentencing that Shockley must
“participate” in a Level V drug treatment program.9 Second, if Level V drug
treatment is a required part of the sentence, it is not clear that Shockley is required
to successfully complete the program (as is customary) before his Level V term is
suspended for Level IV supervision. Because of the uncertainties noted in the
sentence, the Court will remand this matter to the Superior Court for the limited
purpose of reviewing the sentencing transcript and clarifying the written sentence
order.
NOW, THEREFORE, IT IS ORDERED that:
A. The motion to affirm is GRANTED. The judgment of the Superior
Court is AFFIRMED. The motion to withdraw is moot.
B. This matter is REMANDED to the Superior Court for the limited
purpose of reviewing the sentence imposed by the court on February 19, 2016, to
7
Del. Supr. Ct. R. 26(c).
8
Penson v. Ohio, 488 U.S. 75, 80 (1988).
9
Supra note 1.
5
the extent reflected in paragraph (9) of this Order. The Superior Court shall take
any action it deems necessary to clarify or correct the sentence. Jurisdiction is not
retained.
BY THE COURT:
/s/ Collins J. Seitz, Jr.
Justice
6