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holding the appellant's challenge to his violation of probation was untimely and he could not use his appeal from the denial of a motion for reduction of sentence to collaterally attack the merits of his violation of probation
Summary of this case from Jasinski v. StateOpinion
No. 603, 2002
Submitted: February 19, 2003
Decided: March 19, 2003
Court Below-Superior Court of the State of Delaware, in and for Sussex County in Cr. ID No. 9501022972
Affirmed.
Unpublished opinion is below.
LINFORD U. FISHER, Defendant Below, Appellant, v. STATE OF DELAWARE, Plaintiff Below, Appellee. No. 603, 2002 In the Supreme Court of the State of Delaware. Submitted: February 19, 2003 Decided: March 19, 2003
Before VEASEY, Chief Justice, WALSH and HOLLAND, Justices.
Joseph T. Walsh, Justice:
ORDER
This 19th day of March 2003, upon consideration of the appellant's Supreme Court Rule 26(c) brief, his attorney's motion to withdraw, and the State's response thereto, it appears to the Court that:
(1) On July 19, 1995, Linford U. Fisher pleaded guilty to one count of Unlawful Penetration in the Third Degree and one count of Unlawful Sexual Intercourse in the Third Degree. He was sentenced on August 25, 1995, to a total of fifteen years in prison, with credit for time served, suspended after serving three years at Level V, for twelve years of decreasing levels of supervision.
(2) On February 6, 2002, Fisher was arrested and was subsequently charged by Information with one count of Rape in the Second Degree. As a result of his arrest for the new sexual offense, Fisher was charged with violation of probation (VOP). On July 11, 2002, the Superior Court found Fisher guilty of VOP and sentenced him to a total of twelve years at Level V, suspended after serving five years at Level V, for seven years at Level III supervision.
(3) On June 14, 2002, Fisher pleaded nolo contendere to the lesser included offense of Unlawful Sexual Contact in the Third Degree. He was sentenced, on July 11, 2002, to one year at Level V imprisonment, with credit for 155 days served. Fisher appealed his Third Degree Unlawful Sexual Contact conviction to the Supreme Court. By Order dated February 19, 2003, the Court affirmed the Superior Court's judgment.
State v. Fisher, Del. Super., Cr.A. No. S02-02-0360, Graves, J. (July 11, 2002).
Fisher v. State, 2003 WL 423449 (Del. Supr).
(4) Fisher did not appeal his VOP conviction. Instead, on October 4, 2002, Fisher moved for a reduction of his VOP sentence. Fisher argued that the sentence exceeded that which was recommended by Fisher's probation officer. Fisher also argued that his advanced age and medical condition justified a reduction in his sentence. By order dated October 8, 2002, the Superior Court denied Fisher's motion. This appeal followed.
Super. Ct. R. 35(b).
(5) Fisher's counsel has filed a brief and a motion to withdraw pursuant to Supreme Court Rule 26(c). Fisher's counsel asserts that, based upon a complete and careful examination of the record, there are no arguably appealable issues. By letter, Fisher's counsel informed him of the provisions of Rule 26(c) and provided Fisher with a copy of the motion to withdraw and the accompanying brief. Fisher also was informed of his right to supplement his attorney's presentation.
(6) Fisher has responded with several issues that he wishes to raise on appeal. First, Fisher claims that the record "falls short [of] demonstrating [that] Fisher committed a new offense" to justify his conviction of VOP. Second, Fisher contends that the Superior Court sentencing judge made "material false assumptions" and had a "closed mind" during the VOP sentencing proceeding.
Third, Fisher claims that when the Superior Court deferred sentencing on Fisher's nolo contendere plea, the court violated a term of the plea agreement and invalidated "anything obtained as a result of the delayed sentencing," including Fisher's VOP conviction and sentence. The State has responded to Fisher's issues, as well as to the position taken by Fisher's counsel, and has moved to affirm the Superior Court's decision.
(7) 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. First, this Court must be satisfied that defense counsel has made a conscientious examination of the record and the law for arguable claims.
Second, 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 (1988); McCoy v. Court of Appeals, 486 U.S. 429, 442 (1988)); Anders v. California, 386 U.S. 738, 744 (1967).
(8) Fisher's first claim of error challenges the sufficiency of the evidence to support his VOP conviction. Fisher's attempt to challenge his VOP conviction, however, is untimely. Fisher may not use this appeal, from the denial of a reduction of sentence, to collaterally attack the merit of his VOP conviction.
Strawley v. State, 2002 WL 86687 (Del.Supr.).
Doran v. State, 1991 WL 78439 (Del.Supr.).
(9) Second, Fisher argues that the sentencing judge relied on "material false assumptions" and exhibited a "closed mind" during the VOP sentencing proceeding. Fisher, however, did not raise these claims in his Rule 35(b) motion, which was filed primarily on the basis of sentence leniency.
Consequently, having failed to raise the claims at sentencing or on appeal or in his Rule 35(b) motion, Fisher has waived review of the claims in the absence of plain error.
Supr.Ct.R. 8; Trump v. State, 753 A.2d 963, 971 (Del. 2000) (citing Wainwright v. State, 504 A.2d 1096, 1100) (1986)).
(10) Plain error is "limited to material defects which are apparent on the face of the record; which are basic, serious and fundamental in their character, and which clearly deprive an accused of a substantial right, or which clearly show manifest injustice." To constitute "plain error," the error "must be so clearly prejudicial to substantial rights as to jeopardize the fairness and integrity of the trial process."
Wainwright v. State, 504 A.2d 1096, 1100 (1986).
Id.
(11) There is no evidence in the record of plain error in the trial court's sentencing decision. The record indicates that, when imposing the sentence, the Superior Court judge appropriately relied upon Fisher's lack of amenability for any lesser sanctions and his custody status at the time of the new offense.
Moreover, the trial judge fairly considered the arguments presented by defense counsel in mitigation as well as the letters in support of Fisher from friends in the community and church members.
(12) Fisher's claim, that deferred sentencing invalidated his VOP conviction and sentence, is unavailing. His claim is based upon an alleged breach of a plea agreement in another case and has no bearing in this appeal from the denial of a motion for sentence reduction.
(13) This Court has reviewed the record carefully and has concluded that Fisher's appeal is wholly without merit and devoid of any arguably appealable issue. We also are satisfied that Fisher's counsel has made a conscientious effort to examine the record and the law and has properly determined that Fisher 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.