IN THE SUPREME COURT OF THE STATE OF DELAWARE
KEVANN D. McCASLINE, §
§ No. 544, 2016
Defendant Below, §
Appellant, § Court Below—Superior Court of the
§ State of Delaware
v. §
§ Cr. ID No. 1508007463 (N)
STATE OF DELAWARE, §
§
Plaintiff Below, §
Appellee. §
Submitted: May 10, 2017
Decided: July 20, 2017
Before STRINE, Chief Justice; VALIHURA and SEITZ, Justices.
ORDER
This 20th day of July 2017, having considered the no-merit brief and motion
to withdraw filed by the appellant’s counsel, and the response filed by the State, it
appears to the Court that:
(1) On March 11, 2016, a Superior Court jury found the appellant, Kevann
D. McCasline, guilty of Disregarding a Police Officer’s Signal, Resisting Arrest,
Possession of Drug Paraphernalia, and Unlawful Use of Sound Device.1 During the
1
McCasline was charged with playing “loud music/noise which is audible from a distance of 50
feet or more from a motor vehicle” in violation of 21 Del. C. § 4306(c). The title of the statute is
“Horns and Other Sound Devices; Unlawful Use.” Id. We therefore use the term Unlawful Use
of Sound Device as shorthand for this.
prayer conference with counsel on March 10, the Superior Court dismissed a charge
of Reckless Driving.2
(2) On October 14, 2016, after a presentence investigation, the Superior
Court sentenced McCasline to two years at Level V suspended after six months for
one year of probation for Disregarding a Police Officer’s Signal, and to one year at
Level V suspended for one year of probation for Resisting Arrest. For Possession
of Drug Paraphernalia and Unlawful Use of Sound Device, the Superior Court
imposed fines of $100 for each.
(3) On appeal, McCasline’s appellate counsel has filed a brief and a motion
to withdraw under Supreme Court Rule 26(c). Counsel asserts that, based upon a
complete and careful examination of the record, there are no arguably appealable
issues. Counsel represents that he provided McCasline with a copy of the motion to
withdraw and the accompanying brief and informed McCasline of his right to
identify any points he wished this Court to consider on appeal. McCasline has not
submitted any points for the Court’s consideration.
2
See Trial Tr. at 140 (Mar. 10, 2016) (THE COURT: “I am going to throw [Reckless Driving] out.
There is no evidence that he drove on a public roadway in willful or wanton disregard for the safety
of persons.”)
2
(4) In response to the Rule 26(c) brief, the State has identified an instance
of plain error in the record that should be corrected. Otherwise, the State has moved
to affirm the Superior Court’s judgment.
(5) As noted by the State, the record reflects that, at McCasline’s
sentencing (and in the sentence order), in addition to the $100 fines that were
imposed for Possession of Drug Paraphernalia and Unlawful Use of Sound Device,
the Superior Court imposed a $100 fine for Reckless Driving.3 Because Reckless
Driving was dismissed at the March 10 prayer conference, the State notes that the
Superior Court erred when imposing a sentence for that charge.
(6) 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. 4 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.”5 The Court has done so and, except for the imposition of a sentence
3
Sentencing Tr. at 17 (Oct. 14, 2016). See Docket at 19, State v. McCasline, Del. Super., Cr. ID
No. 1508007463 (Oct. 19, 2016) (sentence order filed).
4
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).
5
Penson v. Ohio, 488 U.S. at 82.
3
for the dismissed Reckless Driving charge, McCasline’s appeal is wholly without
merit and devoid of any arguably appealable issue.
(7) The Court agrees with the State that the Superior Court erred when
sentencing McCasline on the charge of Reckless Driving.6 Furthermore, in addition
to the sentencing error, the Superior Court docket and related documents reflect, in
error, that McCasline was convicted of Reckless Driving.7
NOW, THEREFORE, IT IS ORDERED that the State’s motion to affirm is
GRANTED as to McCasline’s convictions and sentence for Disregarding a Police
Officer’s Signal, Resisting Arrest, Possession of Drug Paraphernalia, and Unlawful
Use of Sound Device. The motion to withdraw is moot. This matter is REMANDED
to the Superior Court with instructions to VACATE the conviction and sentence
imposed for Reckless Driving and to take whatever action is necessary to correct the
court’s records.8 Jurisdiction is not retained.
BY THE COURT:
/s/ Leo E. Strine, Jr.
Chief Justice
6
Supra note 1.
7
See Docket at 13, State v. McCasline, Cr. ID No. 1508007463 (Mar. 11, 2016) (abstract of jury
trial).
8
See 11 Del. C. § 4501 (governing formal defects and clerical errors). Dickerson v. State, 2011
WL 4985553 (Del. Oct. 19, 2011) (remanding for correction of sentence but otherwise affirming
under Rule 26(c)).
4