Opinion
Def. ID# 93S02211DI
Date Submitted: January 14, 2002
Date Decided: April 9, 2002
Cleland M. Harvey S.C.I., Georgetown, DE.
Dear Mr. Harvey:
Defendant Cleland Harvey ("defendant") has filed a motion for postconviction relief pursuant to Superior Court Criminal Rule 61 ("Rule 61"). The motion actually contains grounds for relief pursuant to Superior Court Criminal Rule 35(a) as well as Rule 61. This is my decision denying the motions.
FACTS
On November 22, 1993, defendant entered into a plea agreement wherein he pled guilty to the charge of unlawful sexual penetration third degree, a lesser-included charge of unlawful sexual intercourse in the second degree. On that date, he was sentenced to four years at Level 5, suspended for one year at Supervision Level 4, Home Confinement, followed by one year at Supervision Level 3 probation, followed by two years of Level 2 probation, consecutive to any other probation. The plea agreement did not require substance abuse counselling and treatment.
Defendant violated probation five times after that. He was sentenced for violations of probation on June 12, 1998; July 31, 1998; July 6, 1999; July 23, 1999; and January 21, 2000. It was recognized by the time of the July 23, 1999, violation of probation hearing that defendant had an alcohol problem and accordingly, the July 23, 1999, order instructed that he undergo a Level 4 Residential Substance Abuse Treatment Program. When defendant again was found in violation of probation on January 21, 2000, the Court sentenced defendant to three years at Level 5, with credit for time served. After serving two years and successful completion of the Key Program, any balance is suspended for one year at Level 3 Aftercare, consecutive to any probation previously imposed. Because the Court did not calculate the credit time in the January 21, 2000, sentencing order, it modified this sentence by order dated July 11, 2001, to provide as follows:
Effective January 21, 2000, the defendant is placed in the custody of the Department of Correction at Supervision Level 5 for a period of three (3) years with credit for one hundred fifty-two (152) days previously served. After serving two (2) years and successful completion of the Key Program, any balance of the Level 5 sentence is suspended for six (6) months at Level 3 Aftercare consecutive to any probation previously imposed.
Defendant never appealed any sentence imposed in this case.
On December 20, 2001, defendant filed the pending Rule 61 motion. In that motion, he asserts the following grounds for relief.
First, he argues that the January 21, 2000, sentence is illegal because it does not give him credit time for four months served at Level 4. He maintains he already served this time at Level 4, and it constitutes double jeopardy to require him to serve that time again at Level 5.
Second, he argues that the sentence is illegal and contradictory. First, he maintains that 11 Del. C. § 4204 does not authorize inpatient drug and alcohol treatment, which is what the Key Program provides. Second, he argues that the original sentence did not impose the Key Program; to impose it now constitutes an enlargement of his sentence; and the Court cannot impose additional conditions which were not originally imposed.
Third, he argues that the original plea agreement was broken. He was not advised, at the time he entered his plea, that if he violated his probation, he could be required to complete the Key Program; consequently, he did not knowingly and voluntarily waive his rights.
DISCUSSION
Defendant's first two grounds are in actuality attacks on the legality of his sentence. They are not grounds appropriate to Rule 61 relief; instead, they should have been brought pursuant to Superior Court Criminal Rule 35(a). Thus, I will consider them under this rule.
Defendant's first argument fails. A defendant is not entitled to credit time against his Level 5 sentence for any time served at Level 4. Mullen v. State, 768 A.2d 470 (Del.Supr. 2001); Gamble v. State, 728 A.2d 1171, 1172 (Del.Supr. 1999).
Defendant's claims contained in his second ground fail, also. Defendant argues the Key Program is not statutorily authorized. The Key Program is authorized by 11 Del. C. § 4204(c)(8). Phillips v. State, Del. Supr., No. 132, 2001, Berger, J. (February 11, 2002) at 8 n. 13. His additional contention that imposition of the Key Program upon a violation of probation constitutes an enlargement of his probation fails, also. This Court has the discretion to impose such a program upon a violation of probation since the imposition of a condition to a sentence is not synonymous with an imposition of an additional term of imprisonment. Stuart v. State, 763 A.2d 92 (Del.Supr. 2000); Ingram v. State, 567 A.2d 868, 869-70 (Del.Supr. 1989).
The final claim defendant raises is that since he was not informed, at the time he entered his plea, that the Key Program could be imposed upon a violation of probation, he did not make a knowing and voluntary waiver of his rights. This claim is procedurally barred because defendant did not raise it on appeal, and he has failed to show cause for relief from the procedural default or prejudice. Super. Ct. Crim. R. 61(i)(3). However, even if defendant overcame the procedural bars, the claim fails because it is meritless. That defendant could be resentenced and additional conditions be imposed were the result of his conduct in violating probation and were not a direct, automatic consequence of the plea; consequently, the Court was not required to inform defendant of these consequences in the event he violated probation. Harris v. State, 757 A.2d 1278 (Del.Supr. 2000). This claim fails.
CONCLUSION
For the foregoing reasons, defendant's pending motions are dismissed.
IT IS SO ORDERED.