Opinion
Case No. 1911014263
05-21-2020
State of Delaware Petitioner, v. M D Respondent.
Respondent D , Defendant, represented by Charles Tate, Esquire State of Delaware, Petitioner, represented by Francis Mieczkowski, Esquire (DAG)
FINAL ORDER ON MOTION TO REVIEW SENTENCE
Respondent D , Defendant, represented by Charles Tate, Esquire
State of Delaware, Petitioner, represented by Francis Mieczkowski, Esquire (DAG) Kerr, F.
PROCEDURAL BACKGROUND
On November 23, 2019, M D ("Respondent") was arrested in this case and detained in the New Castle County Detention Center ("NCCDC") in lieu of bail. Subsequently, on November 25, 2019, the Court held a bail review hearing and Respondent was detained in lieu of bail at Vision Quest, a Residential Alternative to Detention ("RAD"). Respondent entered a plea of delinquent to the charges of Possession of a Firearm by a Person Prohibited and Assault Third Degree on February 11, 2020. Although the firearm charge carries a minimum sentence of six (6) months, Respondent's counsel requested deferred sentencing so that the Department of Services for Children Youth and their Families- Youth Rehabilitative Services ("YRS") could complete an MPACT assessment to determine if the sentence could be served at a Level IV placement. YRS performed the assessment to determine Respondent's criminogenic needs and level of risk of reoffending. YRS recommended that Respondent serve his six month confinement term at Mowlds Cottage, which is a Level IV YRS facility. Respondent was deemed a low risk to reoffend, as, among other reasons, this was his first charge and he had significant family support. Respondent remained at the RAD until he was sentenced to a six-month minimum sentence at Mowlds Cottage on February 25, 2020. At the sentencing hearing, the Court indicated that there would be a sentence review held on May 5, 2020 as Mowlds programming is approximately three months, and the sentence is for six months.
The Court notes that the sentencing Order erroneously checked the box for mandatory minimum sentencing pursuant to 10 Del. C. §1009(k) instead of 11 Del. C. §1448(f)(1) which is on the next line.
Prior to the May 5, 2020 sentence review hearing, defense counsel filed a Motion to Review the Sentence. Respondent argues that he should be given credit for the time he served at the NCCDC and the RAD toward his six-month minimum sentence. Respondent argues that the RAD serves the same purpose as a Level V facility, such as the NCCDC, as it is a place of residential confinement from which he could not leave. Respondent cites State v. Grooms, 1993 WL 777363 (Del. Fam. 1993), which holds that juveniles are eligible to receive credit for time they are detained prior to adjudication toward a mandatory sentence. The State does not oppose the two days spent at the NCCDC but opposes the request for credit for the time spent at the RAD. The State argued that the RAD is the equivalent of a Level IV facility and there is no case law or statute to support Respondent's argument that time served at a Level IV facility was contemplated in 11 Del. C. §1448(f)(1). The prosecution cited three statutes and three cases to support the position that such credit was not contemplated by the legislature in enacting and modifying 11 Del. C. §1448(f) and that no court has analyzed the applicable statutes to permit this credit.
The NCCDC qualifies as a Level V facility. See Oakley v. State, 2008 WL 836598, *2 (Del. 2008).
Gamble v. State, 728 A.2d 1171(Del. 1999); Anderson v. State, 2006 WL 3931460 (Del. 2006); Oakley v. State, 2008 WL 836598 (Del. 2008).
The Court scheduled a hearing on any factual issues to take place on May 19, 2020. The Court determined that there is not a legal bar to considering Respondent's stay at the RAD toward his credit for time served on the six-month minimum sentence. The Court in an opinion dated May 8, 2020, determined that the case law and statutes cited by the State did not preclude the Court from considering the time spent at the RAD as time served if certain conditions were satisfied. Specifically, the Court wanted to know if the RAD was as restrictive as a YRS Level IV facility such as Mowlds and if the programming at the RAD was rehabilitative and if the services at the RAD were comparable to the services that would be provided by Mowlds following his completion of the core programming at Mowlds. Therefore, the hearing on May 19, 2020 went forward on these three factors.
The core programming at Mowlds is typically completed within 3 months.
MAY 19, 2020 HEARING
At the hearing on May 29, 2020, the Court heard oral argument from both counsel and took testimony. Due to the COVID-19 restrictions and the time sensitive nature of the hearing, the hearing was held by Skype where participants have the option of a complete audio and video experience or just audio. Only Respondent and the Court were on audio and video. The other participants opted for audio only. While the quality of some of the comments was not ideal, there does not appear to be any factual dispute and thus no harm as a result. The Court heard testimony from M M of YRS and from Ms. K from Vision Quest. The Court also heard from the Respondent. A D , Respondent's father, was on the telephone for the hearing but did not testify. Also, Respondent's YRS "probation" officer ("Ms. C ") and her supervisor ("Ms. ") participated in the Skype hearing.
FINDINGS OF FACT
As noted above, the facts themselves are essentially undisputed. Mowlds Cottage is a YRS Level IV classified facility and Vision Quest does not have an actual level designation as it is not run by YRS and is not a post-adjudication facility. Vision Quest has a contract with YRS to provide a residential alternative to pretrial detention. YRS considers the RAD to be a Level III community supervision institution but also concedes that it is more restrictive than home confinement. Both facilities have 24 hour supervision and are locked, although Mowlds has a different locking system which is more comparable to the locking system at the NCCDC. Mowlds also has uniforms and the youth cannot wear what they want as they can at the RAD. Additionally, youth can attend their current school while at the RAD and transportation is provided to and from the school. Respondent did not leave Mowlds to attend school and attended school at the annex on Vision Quest grounds.
Mowlds along with Grace Cottage and Snowden are often referred to as "the cottages" and are on the same grounds as Ferris School and the New Castle County Detention Center but are not as confined.
The Court is not clear if this was due solely to COVID-19 or if it was due in part to the travel distance.
Other than attending school, there is 24 hour staff supervision at the RAD and that includes when the youth are inside and outside the main building or in the annex. This supervision extends to monitoring phone usage. The only place that there is not someone supervising the juvenile is in the bathroom. If a youth were to leave the RAD facility on their own they would be arrested and sent to one of the detention centers pending a hearing on the violation. Respondent testified that there was not one time that he was unsupervised at the RAD.
Regarding the programming at the RAD, Respondent was very cooperative and motivated and fully participated in the programs during his stay at the RAD. There is no claim by the State that Respondent did not participate in his treatment at the RAD and at Mowlds and the State agrees that Respondent has done very well in both facilities. The RAD programs addressed many of the same treatment needs as the programming at Mowlds but lacked the same structure and consistent content due to the inconsistent lengths of stay of the residents. As the RAD is a pretrial facility, there is not a set term or requirement to complete a specific program which can be put in place at sentencing. The RAD programs are not evidence-based and have no set beginning and end as the residents rotate too infrequently for the programs to function in this manner. The RAD provides lessons in different treatment categories, which differ from day to day. The length of each specific program session may vary from an hour to all day. The amount and quality training received by staff was not clear and is provided both in-house and by outside providers. A bachelors' degree is required to be a staff-member at the RAD and the RAD has contractual obligations to YRS.
While at the RAD, Respondent worked on anger management (aggression replacement therapy or "ART"), life skills, moral reasoning (cognitive behavioral therapy or "CBT") and sanctuary. Sanctuary explores issues including coping, trauma, avoiding triggers and safety plans. CBT involves thinking through short-term and long-term impacts of decisions and how these decisions will impact the child's life. Lifeskills addresses issues such as job skills, job search, culinary, budgeting and finance, and education.
The programs at the RAD helped to prepare Respondent for the programs at Mowlds and that there was overlap between the two programs. Skills learned at the RAD, such as writing down his thoughts, were very helpful in making good decisions rather than acting out of emotional impulses. Part of both programs involved victim sensitivity. There does not appear to be a factual dispute regarding the two different types of programming at the RAD and at Mowlds. The testimony all demonstrates that the RAD treatments are not as structured and do not have a set beginning and end and there is no official successful or unsuccessful completion of the program due to the rotating nature of the population. Both facilities have some form of point system, which can give youth a certain level within the facilities.
Finally, if Respondent were to remain at Mowlds for an additional three months, he would not have to take the core programming again but would participate in group sessions and one on one counseling and attend school.
ANALYSIS
Neither side cited any case law or statute specifically on point regarding the issue of whether time spent pretrial in a RAD can be considered toward time-served on a minimum sentence at Level IV or Level V. The Court will not recite the full legal analysis done in the May 8, 2020 opinion and the parties can review that opinion, which concluded that the RAD could be considered toward the six month minimum sentence if the RAD were as restrictive as a Level IV facility such as Mowlds and if rehabilitative services were provided. If rehabilitative services were not provided, the Court would consider if the programming was comparable to what Respondent would receive if he remains at Mowlds for the duration of the six month sentence. Neither cited any additional authorities beyond those cited before the prior hearing.
The State again argues that the legislative intent is clear from the statute itself that there was no intent to include a RAD as "other institutional confinement". However, the statute provides no specific language regarding what would be considered "other institutional confinement." The prosecution advised the Court that the YRS Dispositional Guidelines may contain the language that a RAD would not be considered as "other institutional confinement." The YRS Dispositional Guidelines describe both Level IV and Level V as secure programs. Level IV programs are described as "staff secure" programs while Level V programs are described as "locked secure" programs. Although Ms. M testified that home confinement with GPS and RADs are not considered Level IV supervision, the statute itself clearly states that such programs can be considered as Level IV. The dispositional guidelines also indicate "a staff secure program is one in which the juvenile offender is in an out-of-home placement under the 24 hour supervision of the provider in a contained environment."
As set forth in the earlier opinion 10 Del. C. §928(h) contains a number of options for adjudicated juveniles at Level IV which include facilities such as Mowlds, half-way houses, residential treatment facilities, and home confinement at the juvenile's family home, a DSCYF group home or a foster home. This statute also describes a "facility" as a treatment center, institution, or other place designated for confinement.
See Department of Services for Children, Youth and their Families, Dispositional Guidelines, kids.delaware.gov/yrs/dispositional-guidelines
Based upon the testimony at trial which was essentially undisputed, Respondent's time spent at the RAD would fit the definition of a "staff secure" program. Respondent was supervised at all times while at the RAD and he did not leave the RAD. He was not able to talk on the phone without supervision. While the youth could go outside while at the RAD, they can also go outside at Mowlds. The only difference is that the staff supervising the RAD are employed by Vision Quest as a contractor of YRS while the persons supervising at Mowlds are YRS employees. There may be a different locking mechanism but there was no testimony as to why this would make the building less restrictive. Additionally, the definition of a Level IV facility is "staff-secure" as opposed to "locked secure".
The next questions is whether there are rehabilitative services provided at the RAD. Again, there was no authority cited by either side as to what constitutes "rehabilitative services". The Court notes that there is no dispute that the programming at the RAD is different than the programming at Mowlds as it is not structured and does not have a set beginning and end date, due to the fluctuations in residents in the RAD. Unlike Mowlds, youth are not sent to the RAD for a specific amount of time designed to coincide with the specific programming offered in the facility. However, the programs at the RAD helped prepare Respondent for the programs at the cottage and there was significant overlap in the programming. The programs offered at the RAD involved life skills, aggression replacement therapy, cognitive behavioral therapy and sanctuary. The core programs at Mowlds include many of the same subjects but offered as a set structured evidence-based program. If Respondent remains at Mowlds, he will not be participating in the same structured core programs as he completed them already but would continue to have group sessions, individual therapy and school.
Rehabilitation has a variety of definitions depending upon the context. In the criminal justice system rehabilitation is defined as "the process of restoring someone to a useful and constructive place in society. Neither party cited any definition of "rehabilitation" in any statute or case law. The dispositional guidelines explain that:
Mirriam Webster Dictionary
Effective rehabilitation services for juveniles require a range of program offerings, allowing for varying levels of intensity depending on the needs of the juvenile. The dispositional process balances the rehabilitative needs of the juvenile offender, past response to rehabilitative efforts, and the safety of the community in deciding the placement to a program level. .... The goal following a period of secure care should be to reintegrate such juveniles into the community, through gradually reducing the intensity and restrictiveness of their treatment program combined with effective aftercare services.
kids.delaware.gov/yrs/dispositional-guidelines --------
The prosecution argues that the prior services could not be considered as part of Respondent's rehabilitation as there had not yet been an evaluation and therefore his needs were not known and there was no evidence that the programs were evidence-based. The Court recognizes this but also notes that the services that were eventually recommended and provided to Respondent included many of the same types of programs which he received at the RAD. These programs helped to prepare him for his time at Mowlds and thus assisted in his rehabilitation. Additionally, YRS has contracted with the RAD to provide pretrial supervision and presumably monitor in some capacity the quality of the treatment services. Finally, upon release, Respondent will have aftercare services, which is in line with the intent behind the dispositional guidelines above to gradually reduce the intensity and restrictiveness of their treatment program combined with effective aftercare services.
CONCLUSION
The Court finds that the RAD is a staff-secured facility as the undisputed testimony was that while there Respondent had 24 hour supervision. Mowlds is also a "staff secure" facility and is considered "other institutional confinement". The Court finds that therefore the RAD would meet the definition of "other institutional confinement" pursuant to 11 Del. C. §1448 (f)(1). Additionally, the Court finds that the treatment at the RAD was rehabilitative in nature. While it may not equate with the three-month core programming at Mowlds, it does not have to be equal to be rehabilitative. The RAD program prepared him for the Mowlds program and addressed similar criminogenic needs, thus aiding his rehabilitation. Respondent would not have to take the same exact programming twice and if he remains at Mowlds he would not be taking that same structured programming again. He would be doing groups and one on one counseling and attending school.
ORDER
The Respondent is given credit for the time served at Vision Quest and at the New Castle County Detention Center and he shall be released to his parents to complete aftercare services upon completion of the six-month term.
IT IS SO ORDERED.
/s/_________
Felice Glennon Kerr, Judge FGK/fgk
Cc: Charles Tate, Esquire
Francis Miieczkowski, Esquire, DAG Date emailed:
Date mailed: