Tercero v. State
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IN THE SUPREME COURT OF THE STATE OF DELAWARE PASCUAL TERCERO, Defendant BelowAppellant, v. STATE OF DELAWARE, Plaintiff BelowAppellee. § § § § § § § § § § § No. 227, 2009 Court Below Superior Court of the State of Delaware in and for Sussex County Cr. ID Nos. 0803013003A 0803013003B 0804002368 Submitted: October 22, 2009 Decided: November 3, 2009 Before BERGER, JACOBS and RIDGELY, Justices. ORDER This 3rd day of November 2009, upon consideration of the appellant s opening 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, Pascual Tercero, was found guilty by a Superior Court jury of Endangering the Welfare of a Child and Unlawful Sexual Contact in the First Degree. Tercero also pleaded nolo contendere to Unlawful Sexual Contact in the Second Degree and Rape in the Fourth Degree. He was sentenced to a total of 22 years incarceration at Level V, to be suspended after 12 years for 10 years of probation. This is Tercero s direct appeal of his convictions. (2) Tercero s counsel on appeal has filed a brief and a motion to withdraw pursuant to Rule 26(c). Tercero s counsel asserts that, based upon a careful and complete examination of the record and the law, there are no arguably appealable issues. By letter, Tercero s attorney informed him of the provisions of Rule 26(c) and provided him with a copy of the motion to withdraw and the accompanying brief. Tercero also was informed of his right to supplement his attorney s presentation. Tercero has not raised any issues for this Court s consideration. The State has responded to the position taken by Tercero s counsel and has moved to affirm the Superior Court s judgment. (3) 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) this Court must be satisfied that defense counsel has made a conscientious examination of the record and the law for arguable claims; and (b) this Court must conduct its own review of the record and 2 determine whether the appeal is so totally devoid of at least arguably appealable issues that it can be decided without an adversary presentation.1 (4) This Court has reviewed the record carefully and has concluded that Tercero s appeal is wholly without merit and devoid of any arguably appealable issue. We also are satisfied that Tercero s counsel has made a conscientious effort to examine the record and the law and has properly determined that Tercero could not raise a meritorious claim in this appeal. NOW, THEREFORE, IT IS ORDERED that the State s motion to affirm is GRANTED. The judgment of the Superior Court is AFFIRMED. The motion to withdraw is moot. BY THE COURT: /s/ Jack B. Jacobs Justice 1 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
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