Opinion
Case No. 0406010980CLS.
Date Submitted: June 18, 2007.
Date Decided: August 17, 2007.
Upon Consideration of Defendant's Appeal From Decision of the Court of Common Pleas.
AFFIRMED.Andrew J. Vella, Esquire, Deputy Attorney General, Department of Justice, Wilmington, Delaware, Attorney for the State.
Joseph M. Leager, Jr., Esquire, Assistant Public Defender, Office of the Public Defender, Wilmington, Delaware, Attorney for Appellant.
MEMORANDUM OPINION
FACTS
Appellant Dorothy Carrigan ("Appellant") alleges that ex parte communications took place between the Court of Common Pleas judge and her probation officer. The alleged conversations occurred prior to the filing of a May 26, 2006 Presentence Report and prior to Appellant's August 11, 2006 Violation of Probation ("VOP") Hearing.
On May 26, 2006, prior to the VOP Hearing, Probation Officer Caserta filed a Presentence Report which indicated that Appellant's sentence had been modified from Level 4 Crest program to Level 1 for one year. The report further indicated that Appellant was to take part in a residential drug program at the Walter Hoving Home for at least six months after which she was to comply with Officer Caserta's recommendation of ". . . supervision with the L1 office supevised [sic] by PO D. Smith." Officer Caserta reported that because Appellant was medically discharged from the program within the first month, he advised Appellant to call him once a week. Appellant, however, failed to comply and her efforts were described as "sporadic at best." Officer Caserta also advised Appellant to report to his office for a drug urine screen but again she failed to comply. The report notes the following:
. . . Your Honor stipulated that if she failed to complete the program, then a VOP would result with consequnces [sic] of 185 days at L5. The offender failed to complete the program by being Medically discharged within the first month of her arrival. The offender was also to submit to random urine screens as set by this office in conjunction with PO D. Smith, L1 officer. The offender failed to submit to these conditions.
Officer Caserta recommended that if Appellant was found in violation of her probation, the original sentence of 185 days at Level 5 with no probation should be enforced.
According to Appellant, at her August 11th VOP Hearing she chose to admit certain violations and proceed with argument on sentencing. Appellant states that during sentencing the judge referred to an ex parte communication he had with Officer Caserta regarding Appellant. Accordingly, Appellant refers to the VOP Hearing transcript in which the judge states:
Now, I remember running into Officer Caserta in the hallway, and he says, you'll never believe what happened. She gets up there, she has this problem with her back, and so she needs medication.
Appellant Ex. A, p. 9-10.
When Appellant objected to this comment, the judge stated that "[e]x parte communications take place all the time." The judge then reiterated more of the discussion that took place:
Appellant Ex. A, p. 10.
So here's what happens, I run into him in the hallway, he says, you're not going to believe what happened. She has to take medication, so she doesn't qualify for the program anymore. They threw her out. Here's what I think we ought to do, I'm just going to require her to call me every week, come in and give urines, and as long as they're clean, we don't have a problem. She couldn't do that . . ."
Appellant Ex. A, p. 11-12.
The judge continued to relate more of the conversation:
Here's the deal. When you got thrown out of the home, Officer Caserta said, look, all I want to do is this, I just want her to report once a week to me by phone, and I want her to come in occasionally and give me urines . . . And as long as she did that, as long as she does that, then I don't have a problem with the fact that she got thrown out of the residential program. I said fine . . ."
Appellant Ex. A, p. 14 (emphasis added).
After the VOP Hearing, the Court revoked Appellant's Level 1 probation and resentenced Appellant to 180 days at Level 5 with credit for time served. Thereafter, Counsel for Appellant filed a Motion for New Trial and Recusal that was heard on September 22, 2006. At the hearing, Officer Caserta revealed that a second conversation had also taken place between him and the judge prior to the August 11th VOP Hearing. Initially, Officer Caserta detailed more of the first conversation:
And so, I happened to see the judge, and I said, your Honor, here's what our Level I officer is going to be doing. If Ms. Carrigan doesn't complete the program, I will then write a violation of probation report and submit it to you, in normal channels . . . and then I'll have her call me, and then we'll do some drug testing, randomly, to make sure everything's ok.
Appellant Ex. B, p. 8-9.
Officer Caserta then reiterated the second conversation:
. . . Ms. Carrigan then began to do what she normally did, and that was to be evasive, manipulative, and then lying. She did not call me on a regular basis, I let it go. I then saw the judge, and I said, Your Honor, I'm afraid that Ms. Carrigan, I'm going to have to violate her for sure . . .
Appellant Ex. B, p. 8-9 (emphasis added).
These conversations were not documented. Officer Caserta stated: " It was a verbal communication. I did not write a report that said that . . ." The officer then continued:
I said your Honor, I'm sorry, I'm going to have to write a violation report. Ms. Carrigan, all of the work that we've tried to do for her, and I tried to do for her, went down the tubes. I'm going to have to violate her. I'll send you a report.
Appellant Ex. B, p. 9 (emphasis added).
Appellant Ex. B, p. 10-11 (emphasis added).
After the September 22nd hearing, the Court of Common Pleas denied Appellant's Motion for New Trial and Recusal. The Court held that the conversation which took place did not amount to an ex parte communication because the probation officer was considered an extension of the court.
DISCUSSION
The Court must first determine whether the conversations at issue were prohibited ex parte communication as argued by Appellant. To determine whether a conversation amounts to an ex parte communication, the Court turns to The Delaware Judge's Code of Judicial Conduct for guidance. Pursuant to Canon 2:
Except in the course of the judge's official duties, a judge should not initiate a communication of information to a sentencing judge or a probation or corrections officer but may provide to such persons information in response to a formal request.
Del. Jud. Cond. Canon 2 (2006) (emphasis added).
Moreover, The Delaware Judge's Code of Judicial Conduct Canon 3 states that:
A judge should accord to every person who is legally interested in a proceeding, or to the person's lawyer, full right to be heard according to law, and except as authorized by law, neither initiate nor consider ex parte or other communications concerning a pending or impending proceeding . . .
Del. Jud. Cond. Cannon 3 (2006) (emphasis added).
The Court finds a broad definition of the term "ex parte communication" in Black's Law Dictionary. It defines an ex parte communication as "[a] generally prohibited communication between counsel and the court when opposing counsel is not present." In addition, Black's defines ex parte as, "[d]one or made at the instance and for the benefit of one party only, and without notice to, or argument by, any person adversely interested; of or relating to court action taken by one party without notice to the other . . ."
Hence, for a communication to fall within the aforementioned definitions of ex parte, it must take place between the court and an opposing party. This Court cannot find authority in Delaware that directly places a probation officer into one of these categories. By turning to other jurisdictions, however, the Court finds authority supporting the contention that a probation officer is an officer of the court. Thus, because the probation officer is not an opposing party, the communication at issue is not ex parte.
21 Corpus Juris Secundum § 130 (April 2007) (citing U.S. v. Reyes, 283 F.3d 446 (2d Cir. 2002)).
The Court finds additional support for this contention in the Third Circuit Case of United States v. Burnam decision which quotes the following reasoning: "We have noted that the probation officer is a `confidential adviser to the court, . . . the court's `eyes and ears' a neutral information gatherer with loyalties to no one but the court.'" Accordingly, the United States Court of Appeals for the Third Circuit held that a private conversation between a probation officer and a judge is valid. It did not find a judge's actions were in plain error when he asked to take a 15 minute recess from the probation hearing to speak with a probation officer about the presentence report.
192 Fed. Appx. 103, 105 (3d Cir. 2006) (citing State v. Reyes, 283 F.3d 446, 455 (2d Cir. 2002)).
Id. at 105-106.
Id.
Delaware case law follows a similar line of reasoning by upholding the judge's right to speak with a court appointed special investigator. The Court in Goldstein v. Del. Bureau of Adult Corrections found that a Delaware Superior Court judge did not violate the due process rights of a defendant by communicating with a special investigator regarding the defendant's case. To support this decision, the Court compared the role of a special investigator to that of a probation officer. The Court noted that "[i]t is not a violation of a defendant's due process rights for a probation officer to make suggested finding of fact and sentencing recommendations in his presentence report." Moreover, "the integrity of the judicial role ensures that the court has "the ability to read a pre-sentence report without being improperly influenced."
931 F.Supp. 284, 298 (D. Del. 1996).
Id. (citing U.S. v. Belgard, 894 1092 (9th Cir. 1990)).
Hence, the Goldstein Case not only supports the contention that an ex parte communication did not take place, but that Delaware law, in fact, authorizes a communication between a judge and probation officer without the defendant present. This finding comports with the general trend in Delaware which limits the due process rights of a probationer.
McGeehan v. State, 2006 WL 2946635 (Del.), at *2 ("Probation is an act of grace and the trial judge `has broad discretionary power when deciding whether or not to revoke probation'"); Kurzmann v. State, 903 A.2d 702, 716 (Del. 2006)("`the rules of evidence applicable to criminal trials are relaxed" in VOP proceedings, and hearsay evidence is admissible'").
This Court finds that the conversations at issue did not violate Appellant's due process rights. The record reflects that the Court of Common Pleas judge did not initiate the conversations with the probation officer. In fact, it is also clear from the record that the only thing the judge said in response to Officer Caserta's comments was the word "fine." Officer Caserta told the judge in casual conversation essentially the same information that was reflected in his May 26th Presentence Report. For example, the Presentence Report states that:
It is important to note that the Delaware Code requires probation officers to submit a probation report. 11 Del. C. § 4332(a) (2007).
. . . The offender (Appellant) failed to complete the program by being Medically discharged within the first month of her arrival. The offender was also to submit to random urine screens as set by this office in conjunction with POD Smith, L1 officer. The offender failed to submit to these conditions.
Similarly, the judge noted on the record that Officer Caserta told him about Appellant's urine tests and about her being thrown out of the rehabilitation program. However, at the August 11th VOP Hearing the judge failed to put on the record details of the second communication. Only later, at the September 22nd hearing on Appellant's Motion for New Trial, did Officer Caserta state that he also verbally communicated the following to the judge:
. . . Ms. Carrigan then began to do what she normally did, and that was to be evasive, manipulative, and then lying. She did not call me on a regular basis, I let it go . . .
While the Presentence Report did not include this statement, the Court finds that it generally relates to Officer Caserta's recommendations in his report. The judge, therefore, had every right to consider it. Because the probation officer is the "eyes and ears of the court," Delaware law cannot inhibit this vital line of communication.
Further, it is clear that the judge did not make his final determination based on the conversations. The record reflects that the Court of Common Pleas judge told Appellant, prior to her VOP Hearing, that if she violated again she would receive the full term of her sentence. Officer Caserta's report stated: ". . . Your Honor stipulated that if she failed to complete the program, then a VOP would result with consequnces [sic] of 185 days at L5." There is nothing in the record to suggest that the judge considered the communications in sentencing Appellant.
This Court finds that the conversations were not ex parte communications and thus, Appellant's due process rights were not violated.
Accordingly, the decision of the Court of Common Pleas is Affirmed .
IT IS SO ORDERED.