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.

O R D E R

This 20 th day of July 2017, having c onsidered 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 Disre garding 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 U se

of Sound Device as short hand for this

.2

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 accom panying 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) ( T HE C OURT : “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.”)3

(4) In response to the Rule 26(c) brief, the State has identified a n 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 addi tion 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 Sta te 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 ex amination 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 (1 988); Anders v. California , 386 U.S. 738, 744 (1967).

5 Penson v. Ohio , 488 U.S. at 82.4

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 defe cts 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)).