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concluding that written violation report constituted proper notice of the reasons for the VOP
Summary of this case from Nelson v. StateOpinion
No. 608, 2002
Submitted: April 2, 2003
Decided: June 18, 2003
Court Below-Superior Court of the State of Delaware, in and for Kent County in VK01-01-0250-01. Def. ID No. 0101004489
Affirmed.
Unpublished opinion is below.
MICHAEL LOPER, Defendant Below, Appellant, v. STATE OF DELAWARE, Plaintiff Below, Appellee. No. 608, 2002 Supreme Court of Delaware. Submitted: April 2, 2003 Decided: June 18, 2003
Before HOLLAND, BERGER and STEELE, Justices.
ORDER
Carolyn Berger, Justice:
This 18th day of June 2003, upon consideration of the appellant's 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) On October 18, 2002, the appellant, Michael Loper, was found guilty by the Superior Court of violation of probation (VOP). The Superior Court sentenced Loper to two years and three months of Level V imprisonment, suspended after successful completion of the Level V Greentree Program, for one year at Level IV Crest Supervision, suspended after successful completion, for one year at Level III probation. This is Loper's appeal.
(2) Loper's trial counsel has filed a brief and a motion to withdraw pursuant to Supreme Court Rule 26(c). The standard and scope of review is twofold. The Court must be satisfied that defense counsel has made a conscientious examination of the record and the law for claims that could arguably support the appeal. Second, the 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.
(3) Loper's counsel asserts that, based upon a careful and complete examination of the record, there are no arguably appealable issues. By letter, Loper's counsel informed Loper of the provisions of Supreme Court Rule 26(c) and provided him with a copy of the motion to withdraw and the Rule 26(c) brief. Loper was also informed of his right to supplement his attorney's presentation. Loper responded with a brief that raises three issues for this Court's consideration. The State has responded to the position taken by Loper's counsel as well as to two of the three issues raised by Loper and has moved to affirm the Superior Court's judgment.
(4) Loper identifies three appellate issues for this Court's consideration: (i) the Department of Correction failed to enroll Loper in the Key Program, as the Superior Court had ordered as part of his original sentence; (ii) Loper's VOP conviction was based on reasons other than what were alleged in the violation report, and (iii) Loper's VOP hearing did not comply with the procedural requirements of Delaware Superior Court Criminal Rule 32.1 (Rule 32.1). Loper's claims are without merit.
(5) At the VOP hearing, Loper admitted the VOP and presented a defense for leniency in sentencing. Because Loper did not raise any of the three claims that he now raises on appeal, he has waived appellate review of the claims in the absence of plain error.
(6) On appeal, Loper complains that the Department of Correction did not place him in the Key Program, as the Superior Court had ordered as part of his original sentence in 2001. Loper's claim may be true, but it is unavailing. In view of Loper's DUI history and his admission to the VOP, the Superior Court was well within its discretion when determining at the VOP hearing in 2002 that the Level V Greentree Program was a suitable level of supervision for Loper.
(7) There is no factual or legal basis for Loper's claim that he did not receive proper notice of the reasons for the VOP or that he was convicted of VOP for new or different reasons than those that were originally alleged. The written violation report alleged that Loper violated Condition 3 (failure to report to supervising probation officer) and Condition 9 (failure to comply with special probation conditions, including payment of fines, failure to make his intake appointment for Work Referral and failure to participate in the DUI program). The specifics of each of the two alleged probation violations were set forth in detail in the written report. At the VOP hearing, the probation officer stated the same allegations. Moreover, Loper admitted that he had missed three appointments, failed to pay on his fines, and failed to participate in the DUI program.
(8) Finally, there is no basis in the record for Loper's claim that the VOP hearing did not comply with the procedural requirements of Rule 32.1. As required by Rule 32.1, there was written notice of the allegations in the violation report and disclosure of the evidence against Loper. Moreover, Loper had an opportunity to appear through legal counsel, to confront the witnesses against him, and to present evidence on his own behalf.
(9) This Court has reviewed the record carefully and has concluded that Loper's appeal is wholly without merit and devoid of any arguably appealable issue. We are also satisfied that Loper's counsel made a conscientious effort to examine the record and properly determined that Loper could not raise a meritorious issue in this appeal.
Loper's original conviction in 2001 was for Driving Under the Influence (DUI). Loper was sentenced to three years at Level V, suspended after nine months, followed by one year at Level III and one year at Level II. While at Level V, Loper was ordered to complete the Key Program at the Webb Correctional Facility. State v. Loper, Del. Super., Cr. ID No. 0101004489, Vaughn, J. (June 8, 2001).
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 (1967).
Superior Court Criminal Rule 32.1 provides that a person charged with a violation of probation shall be given:
(A) Written notice of the alleged violation; (B) Disclosure of the evidence against the person; (C) An opportunity to appear and to present evidence in the person's own behalf; (D) The opportunity to question adverse witnesses; and (E) Notice of the person's right to retain counsel and, in cases in which fundamental fairness request, to the assignment of counsel if the person is unable to retain counsel. Del. Super.Ct.Crim.R. 32.1(a).
See Del. Supr.Ct.R. 8.
The VOP hearing transcript reflects the following dialogue between the trial judge and Loper:
THE COURT: Well, I think you need some treatment at a Level 5 facility. It's actually rather obvious. I mean, you did the nine months. Did they put you in any treatment program, or did you just do the nine months.
THE DEFENDANT: I did the nine months. They gave me the Key Program, but when they had come up to take me up there, I only had two months on my time left. VOP Hr'g Tr., Oct. 18, 2002, at 6-7.
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.