Summary
discussing the requirements for a motion to affirm a conviction pursuant to Superior Court Civil Rule 72.1
Summary of this case from Clark v. StateOpinion
ID. No. 9708009409.
Submitted: September 7, 1999.
Decided: November 30, 1999.
Upon Consideration of Appellee's Motion to Affirm; DENIED.
Dennis Kelleher, Esq., Dover, Delaware. Attorney for the State.
David Steelman, Pro Se.
ORDER
Upon consideration of the appellee's motion to affirm and the record in this case, it appears that:
1. Appellant David Steelman has filed an appeal from a decision of the Court of Common Pleas ("CCP") which found him in violation of probation. On October 30, 1997, Steelman pled guilty in CCP to a worthless check charge and was sentenced to one year at Level V, suspended for one year at Level II. The court also ordered him to make restitution. At the time of sentencing, Steelman was being held in default of bail on charges pending in Superior Court. He posted his bail on those charges apparently during the first week of December 1997. He did not report to begin his Level II probation at that time nor did he advise the probation officer of his whereabouts.
2. On January 15, 1998, his probation officer filed a violation of probation report with CCP. The report recited that on December 18, 1997, a probation officer attempted to contact Steelman to instruct him to report for probation on January 5, 1998. Steelman could not be found and a capias was issued. The capias remained outstanding until February 17, 1999. On that date, with Steelman present, CCP held a hearing on the allegation that Steelman violated his probation by failing to report. Steelman explained that when he posted his bond on the Superior Court charges in December 1997, he was transported to New Mexico to answer charges pending in that jurisdiction. In other words, according to Steelman he was not actually released from custody. He further explained that he had remained incarcerated in New Mexico continuously until being transported back to Delaware, which occurred only the day before the hearing. Steelman provided the name of the agency and agent responsible for his transportation from New Mexico. He was also able to give the name and location of the correctional facility in which he had been held in New Mexico. The probation officer was unable to confirm or deny any of Steelman's assertions. During a recess the probation officer called the records supervisor at Gander Hill who relayed that Steelman had arrived at that facility 11:22 p.m. the day before, apparently coming in from the street. No further effort was made to confirm or deny Steelman's story. The court then found Steelman in violation of probation for failing to pay restitution. He was re-sentenced to one year at Level V, suspended after 90 days, followed by Level III for one year.
3. The State moved to affirm CCP's decision pursuant to Superior Court Criminal Rule 39(c) and Superior Court Civil Rule 72.1(b)(1), (2) and (4), arguing that the court below properly followed Delaware law, the decision was supported by sufficient evidence and that there was no abuse of discretion.
4. The court's function on appeal is to determine whether the decision of the court below is supported by substantial evidence and is free from legal error. However, this Court can grant a motion to affirm only if:
Shahan v. Landing, Del. Supr., 643 A.2d 1357 (1994).
it is manifest on the face of appellant's brief that the appeal is without merit because . . . [t]he issue on appeal is clearly controlled by settled Delaware law [or] [t]he issue on appeal from a court is factual, and clearly there is sufficient evidence to support the jury verdict or findings of fact below [or] [t]he issue on appeal is one of judicial discretion, and clearly there was no abuse of discretion.
Super. Ct. Civ. R. 72.1(b).
5. Here we have a case of a probationer who was cited by the probation officer for failure to report, who claimed to be incarcerated at all times relevant to the proceeding, and who was violated for failure to make restitution. Apparently only minimal effort was made to verify his whereabouts during the period in question or give him an opportunity to do so. Given the factual circumstances surrounding the violation of probation hearing, I cannot find that there was clearly no abuse of discretion. Accordingly, I find that summary disposition of this matter is not warranted and that full briefing is appropriate.
THEREFORE, IT IS ORDERED that Appellee's Motion to Affirm is DENIED . Answering and reply briefs shall be submitted within the time specified by Rule 72.1.
oc: Prothonotary cc: Order Distribution