IN THE SUPREME COURT OF THE STATE OF DELAWARE

HARRY W. ANDERSON, § § No. 136, 2014 Defendant Below, § Appellant, § Court Below—Superior Court § of the State of Delaware in and v. § for New Castle County § STATE OF DELAWARE, § § Plaintiff Below, § Cr. ID No. 0012001083 Appellee. § Submitted: September 4, 2014 Decided: November 11, 2014

Before HOLLAND , RIDGELY and VALIHURA , Justices.

O R D E R

This 11 th day of November 2014, upon careful consideration o f the appellant’s brief pursuant to Supreme Court Rule 26 (c), his attorney’s motion to withdraw, the State’s response, the appel lant’s points, and the State’s supplemental response, it appears to the Co urt that: (1) On September 4, 2001, the appellant, Harry W. A nderson (“Anderson”) pled guilty to Assault in the Second D egree and was sentenced to two years at Level V suspended for twenty-two mo nths at Level III. On January 24, 2002, Anderson was found in violation o f probation and was discharged from probation as unimproved.2

(2) On August 15, 2013, Anderson filed a motion for postconviction relief under Superior Court Criminal Rule 61 (“Rule 61”). Anderson alleged that his 2001 guilty plea was coer ced due to ineffective assistance of counsel. By order dated September 3, 2013, the Superior Court appointed counsel to represent Anderson. (3) On January 7, 2014, Anderson’s counsel (hereina fter “Counsel”) filed a motion to withdraw under Rule 61 (e)(2). 1 Counsel represented that he had undertaken a thorough revie w of the record to

evaluate Anderson’s claims and had determined that the claims were without merit, and that the record did not reflect any othe r grounds for relief. Moreover, Counsel represented that, under Rule 61(a ), Anderson had no standing to seek relief because he was no longer “i n custody or subject to future custody” on the sentence imposed on the 2001 Assault conviction. 2

1 See Del. Super. Ct. Crim. R. 61(e)(2) (“If counsel con siders the movant’s claim to be so lacking in merit that counsel cannot ethically advo cate it, and counsel is not aware of any other substantial ground for relief available to th e movant, counsel may move to withdraw.”).

2 See Del. Super. Ct. Crim. R. 61(a):

This rule governs the procedure on an application b y a person in custody or subject to future custody unde r a sentence of this court seeking to set aside a judgm ent or conviction . . . on the ground that the court lacke d jurisdiction or on any other ground that is a suffi cient factual and legal basis for a collateral attack upo n a criminal conviction.3

(4) The Superior Court agreed with Counsel’s positi on. By corrected order dated February 19, 2014, the Superi or Court granted

Counsel’s motion to withdraw and denied Anderson’s pro se motion for postconviction relief, after finding that Anderson had no standing to pursue postconviction relief and there were no meritorious grounds for relief. This appeal followed. (5) On appeal, Counsel has filed a brief and a moti on to withdraw under Supreme Court Rule 26(c) (“Rule 26(c)”). Cou nsel asserts that, based upon a complete and careful examination of the reco rd, there are no arguably appealable issues. In points that he submitted for the Court’s consideration, Anderson challenges the 2001 warrant, the indictmen t, and asserts that his

trial counsel and Counsel were ineffective because they did not investigate the events underlying the assault charge. The Stat e has responded to Anderson’s points and has moved to affirm the Super ior Court’s judgment. (6) When reviewing a motion to withdraw and an acco mpanying brief under Rule 26(c), the Court must be satisfied that the appellant’s

counsel has made a conscientious examination of the record and the law for arguable claims. 3 The Court must also conduct its own review of the record

3 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).4

and determine whether the appeal is so totally devo id of at least arguably appealable issues that it can be decided without an adversary presentation. 4 (7) Under Delaware law, once a criminal sentence is completed, any postconviction claim with respect to that conviction is moot because the defendant is no longer ‘in custody or subject to future custody’ as a result of that conviction. 5 The only exception to the rule is when the defendant ‘suffers collater al legal disabilities or burdens.’ 6 The defendant has the burden of ‘demonstrating specifically a right lost or disability or burden imposed, by reason of the instant conviction.’ 7 (8) In this case, Anderson is no longer in custody or subject to future custody on the sentence imposed on the Assau lt conviction that is the subject of his motion for postconviction relief. A nd nowhere does he specifically identify a right lost or disability or burden imposed as a result of the conviction to overcome the general rule mooting his claims for relief. As a result, Anderson lacks standing to move for po stconviction relief under

Rule 61. (9) The Court has reviewed the record carefully and has concluded that Anderson’s appeal is wholly without merit and devoid of any arguably

4 Id. 5 Paul v. State , 2011 WL 3585623, at *1 (Del. Aug. 15, 2011) (quot ing Del. Super. Ct. Crim. R. 61(a)(1)).

6 Id. (quoting Gural v. State , 251 A.2d 344, 344-45 (Del. 1969).

7 Id.5

appealable issue. We are satisfied that Counsel ma de a conscientious effort to examine the record and the law and properly dete rmined that Anderson could not raise a meritorious claim on appeal. NOW, THEREFORE, IT IS ORDERED that the State’s moti on to affirm is GRANTED. The judgment of the Superior Co urt is AFFIRMED.

The motion to withdraw is moot.

BY THE COURT: /s/ Randy J. Holland Justice