Summary
finding that defendant violated probation when failing to comply with special conditions of sentence and when failing to comply with conditions of supervision of probation
Summary of this case from Spicer v. StateOpinion
Cr.A. No. VN98 12045502.
Submitted October 4, 2000.
Decided October 20, 2000.
Opinion on Remand
This matter was remanded to this Court for a continued hearing on the charge of violation of probation, previously heard on February 9, 2000. At the continued hearing the defendant was represented by counsel and presented evidence from two witnesses as well as by letter from defendant's former spouse and introduction of "conditions" of supervision. The State also presented brief testimony from a probation officer.
Upon the conclusion of the hearing the Court reserved jurisdiction so as to write a decision as directed in the remand.
Based upon the evidence produced at both hearings and from a review of the court records, the Court finds as follows:
1) Mr. John Schafferman has been under various forms of probation and/or custodial supervision continuously since November 14, 1989.
2) Mr. Schafferman is well aware of his responsibility as to probation supervision rarely living up to them, being the subject of six separate and distinct violation of probation hearings in Superior Court of New Castle County prior to February 9, 2000.
3) The trial judge is very familiar with Mr. Schafferman, and his case having sentenced him on a DUI and violation of probation in 1997, a DUI in 1999 and two separate violations of probation in 1999.
4) In March of 1999, the Court sentenced Mr. Schafferman to long term substance abuse treatment at level V to be followed by work release at level W. This was because his repeated DUI's and out of control substance abuse posed a threat to the community.
5) Upon intercession of Mr. Schafferman's attorney and because he had not yet received level V treatment, his sentence was modified on October 25, 1999 to allow for treatment at level IV Crest.
6) On December 10, 1999, because he had not yet been moved to Crest and had violated rules at the Sussex Community Center, his sentence was modified to allow him to wait at level III while waiting for level IV treatment at Crest. This level III hold was imposed at "zero tolerance" because the Court was acting contrary to SENTAC policy of holding persons at level V for level IV; and, more importantly because of Mr. Schafferman's violation history and danger to public safety.
7) On January 5, 2000, less than 30 days after being released to level III supervised custody to await placement at level IV treatment, Mr. Schafferman's probation officer was called by police who had stopped Mr. Schafferman after dusk in a residential area which had been experiencing a rash of burglaries. Mr. Schafferman was seen between two houses with a ladder. (One of his prior convictions was burglary). The probation officer asked the police to check if Mr. Schafferman had gone home at 7:00 p.m., after encountering the police. They checked, he was not at home.
8) On January 7, 2000, probation and parole conducted a second curfew check at Mr. Schafferman's residence at 8:00 p.m., again he was not present
9) The violation of probation hearing was scheduled and continued until February 9, 2000 due to inclement weather.
10) At the initial hearing, Mr. Schafferman was represented by counsel who indicated to the Court that Mr. Schafferman's boss was present and could verify he was working at the time he was stopped by police.
11) At the continued hearing, Mr. Brown, his employer, testified that on January 5, 2000, Mr. Schafferman was working in the locale where he was stopped and that on January 7, 2000, the defendant was also doing a job with the boss' son and further testified that the job on January 7, 2000, was fully completed before 7:00 p.m.
12) The son testified as well that Mr. Schafferman worked with him on January 7, 2000, and that they finished the job before 7:00 p.m., they then ran an errand, and finally stopped and got something to eat.
13) The letter from Mr. Schafferman's former spouse was to the effect that he called her at 8:20 p.m. on January 7th from his home. Defense Exhibit #2.
14) Defendant who has had multiple experiences at various levels of supervision was well aware that his curfew allowed him to be away from his home only one time on work days to proceed "to work and directly home." (Emphasis added). Defense Exhibit #1.
15) Defendant's employer and son, who have been acquaintances and friends of defendant for 14 years, testified they never asked about nor knew his probation conditions. According to them, the defendant never told them about these strict requirements.
16) It is clear that defendant was not at home at 8:00 p.m. on January 7, 2000. According to defendant's own witness they stopped to get something to eat after work. This departure from the rules of supervision violates his curfew.
17) The purpose behind zero tolerance and the strict curfew on persons being held for level IV (especially for inpatient substance abuse treatment) is to prevent relapse or injury to the defendant or other persons, something far more likely to happen if one is socializing after work, even if that is with the boss' son.
18) The Court also notes that it clearly misinterpreted Mr. Schafferman's statement in January "if you would like to meet my boss" to ask the Court if the Court wanted to hear the employer as to its sentencing decision. The Court was reluctant to do that as it has not been traditional in Superior Court to hear witnesses as to the sentencing decision, other than victims afforded that right by statute. Superior Court in New Castle County processes 150 violations of probation per week. On any occasion when counsel has requested a contested hearing, it is scheduled. This judge conducted 143 such contested hearings in the past fiscal year, some of which took more than one trial day. More than 10% of these hearings resulted in a dismissal or withdrawal of the violation.
19) The Court based upon its findings concludes that Mr. Schafferman violated the terms of his zero tolerance supervised custody level III sentence on January 7, 2000 by not proceeding directly home after work.
20) The Court concludes that Mr. Schafferman never reported the police contact of January 5, 2000 to his probation officer as required by the conditions of supervision and was in violation of probation for that reason as well.
21) The Court concludes, finally, that these two violations of condition under a "zero tolerance" level III hold are serious enough to reimpose the level V hold for level IV treatment — that had previously been modified.,
Level III supervised custody at zero tolerance is the most tightly regulated form of community supervision adhering to home confinement guidelines. It is an escape value for overcrowded prisons used most frequently for those sentenced to a higher level of custody who have been waiting too long at level V for a level IV placement.
Mr. Schafferman had previously been violated for failure to report as directed, new criminal offenses, possession and use of alcohol, failure to follow rules, continued substance abuse, refusal to engage in treatment.
This Judge, because of Fast Track proceedings and Drug Court, had scheduled 3, 743 VOP hearings in FY 2000; 1,482 of those were sentenced on those violations.
On July 25, 2000, the defendant was again convicted of violation of probation for his refusal to participate in the Crest Substance Abuse Treatment program. He was placed on Home Confinement at that time.
In addition, it should be noted that Mr. Schafferman's employment at a landscape or trash cleanup business operated by the Browns was different than his reported employment as working at their formal electrical business. The Court, however, would not have found that violation of conditions as being serious enough to violate the sentence.
Respectfully Submitted,
The Honorable Richard S. Gebelein