Opinion
Docket No. 363, 2000
October 12, 2000
Appeal from Superior Court, Sussex County, CrA S95-04-0153.
AFFIRMED.
Unpublished Opinion is below.
GEORGE L. JENKINS, Defendant Below, Appellant, v. STATE OF DELAWARE, Plaintiff Below, Appellee. No. 363, 2000 In the Supreme Court of the State of Delaware. Submitted: September 28, 2000 Decided: October 12, 2000
Court Below: Superior Court of the State of Delaware in and for Sussex County in Cr.A. No. S95-04-0153, Def. ID No. 9504000994.
Before HOLLAND, BERGER and STEELE, Justices.
ORDER
This 12th day of October 2000, upon consideration of the appellant's opening brief and the appellee's motion to affirm pursuant to Supreme Court Rule 25(a), it appears to the Court that:
(1) In August 1995, the appellant, George L. Jenkins, pleaded guilty in the Superior Court to First Degree Burglary. Jenkins was sentenced to five years at Level V, with credit for time served, suspended after three years for two years of probation. In June 1998, Jenkins was found guilty of violation of probation ("VOP") and was sentenced. In April 1999, Jenkins was again found guilty of VOP and was sentenced. In December 1999, Jenkins was convicted, for the third time, of VOP and was sentenced.
(2) On July 13, 2000, Jenkins pleaded guilty in the Court of Common Pleas to a charge of Third Degree Escape. Jenkins was sentenced to 30 days at Level V.
State v. Jenkins, Del. CCP, Cr.A. No. MS00-07-1031CR, Beauregard, J. (July 13, 2000).
(3) It appears from the record that Jenkins' escape conviction, as well as his testing positive for cocaine upon his return from escape status, formed the basis of a charge of VOP — Jenkins' fourth — in the Superior Court. Indeed, on July 21, 2000, Jenkins was adjudged guilty of VOP and was sentenced to two years at Level V, with credit for time served; upon successful completion of the Key Program, the balance was suspended for Level IV home confinement or work release. This appeal followed.
(4) On appeal, Jenkins raises several claims stemming from the arrest that led to his Third Degree Escape conviction in the Court of Common Pleas on July 13, 2000, as well as the sentence imposed by the Court of Common Pleas on that date. This Court is without jurisdiction to consider those claims.
Del. Const. Art. IV, § 11( 1)(b); 11 Del.C.. § 5301(c).
(5) Jenkins claims that the July 21, 2000 sentence for VOP and the July 13, 2000 sentence for Third Degree Escape constitute multiple punishments for the same violation. Jenkins' claim is without merit. By committing a new crime, i.e., Third Degree Escape, as well as testing positive for cocaine, Jenkins violated the conditions of probation and was subject to deferred punishment on the original offense of First Degree Burglary as well as direct punishment for the escape conviction.
State v. Dorsey, Del. Super., Cr.A. No. IN92-04-0831R1, Gebelein, J., 1995 WL 862118 (Nov. 1, 1995) (Mem. Op.), aff'd, Del. Supr., No. 451, 1995, Veasey, C.J., 1996 WL 265992 (May 13, 1996) (ORDER) (citing United States v. Clark, 9th Cir., 984 F.2d 319 (1993)).
(6) It is manifest on the face of Jenkins' opening brief that the appeal is without merit. The issues presented in this appeal are clearly controlled by settled Delaware law, and there was no abuse of discretion.
NOW, THEREFORE, IT IS ORDERED, that the State's motion to affirm is GRANTED. The judgment of the Superior Court is AFFIRMED.
BY THE COURT:
/s/ Carolyn Berger Justice