Nicholson v. State, 297

• Decision Date: 26 January 1998
• Docket Number: No. 297,1997,297
• Parties: Andrew NICHOLSON, Defendant Below, Appellant, v. STATE of Delaware, Plaintiff Below, Appellee.
• Court: United States State Supreme Court of Delaware

Page 766

707 A.2d 766

Andrew NICHOLSON, Defendant Below, Appellant, v. STATE of Delaware, Plaintiff Below, Appellee.

No. 297, 1997.

Supreme Court of Delaware.

Submitted Dec. 11, 1997.

Decided Jan. 26, 1998.

Court Below: Family Court of the State of Delaware in and for New Castle County, File No. JN96-4010.

Before VEASEY, Chief Justice, WALSH and BERGER, Justices.

ORDER

This 26th day of January 1998, upon consideration of appellant's Supreme Court Rule 26(c) ("Rule 26(c)") brief, his attorney's motion to withdraw, and the State's response thereto, it appears to the Court that:

(1) Following a March 1997 delinquency hearing, a Family Court commissioner found the defendant-appellant, Andrew Nicholson, guilty of disorderly conduct, resisting arrest, and criminal mischief. The Family Court sentenced Nicholson to indefinite commitment suspended for six months level two probation, followed by six months level one probation. Nicholson was also ordered to complete 30 hours of community service, and to pay restitution. The commissioner's order was reviewed and affirmed by a Family Court judge in June 1997.

(2) Nicholson's counsel has filed a brief and a motion to withdraw pursuant to Supreme Court Rule 26(c). Nicholson's counsel asserts that, based upon a complete and careful examination of the record, there are no arguably appealable issues. By letter, Nicholson's counsel informed him of the provisions of Rule 26(c) and provided Nicholson with a copy of the motion to withdraw and the accompanying brief. Nicholson was also informed of his right to supplement his attorney's presentation. Nicholson has raised nine issues for this Court's consideration. The State has responded to the position taken by Nicholson's attorney and has moved to affirm the Family Court's decision.

(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 determine whether the appeal is so totally devoid of at least arguably appealable issues that it can be decided without an adversary presentation. Penson v. Ohio, 488 U.S. 75, 83, 109 S.Ct. 346, 102 L.Ed.2d 300 (1988); McCoy v. Court of Appeals of Wisconsin, 486 U.S. 429, 442, 108 S.Ct. 1895, 100 L.Ed.2d 440 (1988); Anders v. California, 386 U.S. 738, 744, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967).

(4) The following undisputed facts are reflected in the record: On the night of November 5, 1996, officers Szczerba and Morigie of the New Castle County Police Department were dispatched to the area of Woodfield Townhomes in Claymont, Delaware to investigate a disorderly persons complaint. Shortly after arrival, the officers encountered Nicholson and two other teenagers in a field near a cemetery. The officers detained the three teenagers, frisked them for weapons, and questioned them regarding their identity. The officers informed the teenagers about the complaint they had received and ordered all three to leave the area. Nicholson complied with the command initially but returned shortly thereafter in order to obtain the names and badge numbers of the officers. Nicholson demanded that Officer Szczerba provide the use of his pen so that Nicholson could record the information. When Officer Szczerba refused the use of his pen, Nicholson became irritated and belligerent. The officers then placed Nicholson in protective custody and transported him to his Delaware residence in order to place him in the custody of his parents.

(5) Upon arrival at the residence, the officers contacted Nicholson's father and he agreed to take custody of his son. After being released Nicholson began to argue loudly with his father in the street. At this point the officers informed Nicholson that he was under arrest for disorderly conduct. Nicholson, after resisting the officers attempts to take him into custody, was sprayed with pepper mace, handcuffed and placed in the back of a patrol vehicle. Once placed into the car, Nicholson continued to struggle and eventually shattered the left rear window of the vehicle after kicking it repeatedly. Nicholson was charged with criminal mischief for breaking the window.

(6) On appeal, Nicholson has raised nine points for this Court to consider, however, his claims really concern four general issues: (i) the police lacked the authority to take Nicholson into custody and to drive him to his residence; (ii) the police failed to follow proper arrest procedure; (iii) the police treated Nicholson improperly and used excessive force in effecting the arrest; and (iv) the charge of criminal mischief for the broken window was unsupported because Nicholson did not have the required intent to commit the act.

(7) Nicholson's main...