Opinion
Def. ID No. 0002019793.
September 20, 2004.
Memorandum Opinion — Motion for Postconviction Relief
Dear Mr. Hall:
This is my decision on your Motion for Postconviction relief. I found you in violation of your probation on July 18, 2003 and resentenced you to one (1) year at Level V for Criminal Action No. S00-03-0162 and to six (6) months at Level V, suspended for six (6) months at Level IV Work Release, for Criminal Action No. S98-04-0682. You filed this motion on December 12, 2003. This is your first motion for postconviction relief and it was filed in a timely manner. Therefore, your motion is not barred by Superior Court Criminal Rule 61(i)(2).
You allege three (3) grounds in support of your motion for postconviction relief. Specifically, you allege that (1) you were denied your Sixth Amendment right to counsel; (2) your Fourteenth Amendment due process rights were violated; and (3) that nobody checked out your situation. All three of your allegations are based upon the belief that you were denied your right to counsel and they will be treated in that manner.
Although you allege that your Fourteenth Amendment due process rights were violated, your argument is based upon the allegation that no one asked you if you were represented. This is a Sixth Amendment argument and will be treated together with your Sixth Amendment right to counsel argument.
I. Sixth Amendment Violation
Your three allegations are based upon the Sixth Amendment's right to counsel. First, you allege that due to your incarceration you were not able to obtain the necessary information to prepare your defense. You suggest the assistance of counsel would have made obtaining the information easier. Second, you allege that if you had a lawyer, then someone would have been able to "check out your circumstances". Third, you allege that no one asked you if you desired representation.
Delaware Courts have addressed the issue of a probationer's right to counsel during a revocation of probation hearing on several occasions. Jones v. State involved an indigent defendant who, without the assistance of counsel, admitted to violating his probation during his violation of probation hearing. The Defendant in Jones argued that "since he was indigent, the Court of Common Pleas violated his Sixth Amendment right to counsel by not appointing an attorney to represent him.". The Court in Jones determined that an indigent probationer is not entitled to counsel in every situation, but the determination should be made on a case-by-case basis. Sheppard v. State mirrors the current case as well. The defendant in Sheppard alleged that his Sixth Amendment right to counsel was violated when he did not have counsel appointed to represent him in a violation of probation hearing. Again, the Delaware Supreme Court found the defendant's claims to be without merit. The Court held that the holding in Jones was dispositive of the claim in Sheppard. Sheppard admitted to his probation violations during the hearing, but argued that he absconded because he had to help take care of his family's financial situation. The Court stated the defendant's case was not a complex one, therefore, he did not require the assistance of counsel.
Jones v. State, 560 A.2d 1056 (Del. 1989), Sheppard v. State, 593 A.2d 590, 1991 WL 78469 (Del. 1991), Richardson v. State, 806 A.2d 164, 2002 WL 972233 (Del. 2002).
Jones, 560 A.2d at 1057.
Id. at 1056.
Id. at 1057.
Sheppard, 593 A.2d 590, 1991 WL 78469 (Del. 1991).
Id., 1991 WL 78469 at 2.
Id., 1991 WL 78469 at 1.
Id., 1991 WL 78469 at 2.
The Delaware Supreme Court continued to apply the Jones holding in Richardson v. State. In Richardson, the defendant alleged ineffective assistance of counsel. At the hearing, the Assistant Public Defender was present on the defendant's behalf. However, he remained silent during the hearing. The Supreme Court treated the situation as one in which the defendant was not represented. Similar to the previous situations, the defendant admitted that he had violated his probation. The Supreme Court found the defendant's claim to be without merit.
Richardson, 806 A.2d 164, 2002 WL 972233 (Del. 2002).
Id., 2002 WL 972233 at 1.
Id., 2002 WL 972233 at 2.
The standard that the Supreme Court considers when examining if counsel should have been provided can be found in Gagnon v. Scarpelli. "Procedurally, the Supreme Court has held that counsel should be provided in cases where the probationer raises a timely and colorable claim (i) that he has not committed the alleged violation of the conditions upon which he is at liberty; or (ii) that, even if the violation is a matter of public record or is uncontested, there are substantial reasons which justified or mitigated the violation and make revocation inappropriate, and that the reasons are complex or otherwise difficult to develop or present.". The Gagnon case was superseded by the Jones case. However, the above language is still considered when determining if a probationer's rights have been protected.
Gagnon v. Scarpelli, 411 U.S. 778 (1973).
Id. at 790 (1973).
The established case law dismisses Hall's alleged Sixth Amendment violations. There is not an absolute right to counsel in revocation of probation hearings. The right to counsel in these situations must be determined on an case-by-case basis. An examination of the facts suggests that Hall's case was not complex and he was not entitled to counsel. The following exchange took place during his Violation of Probation hearing:
The Court: Apparently, you were arrested at 10:47 p.m. when you had a 10:00 o'clock curfew. Is that correct?
The Defendant: I was already absconded from probation.
The Court: I am sorry?
The Defendant: I was arrested, but I was already absconded from probation.
The Court: You were already what?
The Defendant: Absconded from probation. I had probation running concurrent with this probation and the Court of Common Pleas.
The Court: All right. But you were arrested after 10:00 o'clock, is that correct?
The Defendant: Yes, you can say that.
The Court: And you had absconded from probation, you weren't reporting anymore?
The Defendant: No, sir.
Tr. at 2-3.
The level of evidence needed in a VOP hearing need only be "such as to reasonably satisfy the judge that the conduct of the probationer has not been as good as required by the conditions of the probation.". Hall admitted that he was out after his curfew, which was a violation of his probation. Furthermore, there does not appear to be any circumstances that would justify or mitigate the violation or necessitate the presence of counsel.
Brown v. State 249 A.2d 269 (Del. 1968) (quoting Manning v. States, 161 F.2d 827, 829 (5th Cir. 1947).
For the foregoing reasons and based upon established case law, Hall's Rule 61 Motion for Postconviction Relief is DENIED.