Opinion
Cr.A. No. MN98-04-0421, MN98-04-0422, ID# 9804000462.
Date Submitted: October 4, 2000.
Date Decided: January 5, 2001.
UPON REMAND FROM THE SUPREME COURT
MEMORANDUM OPINION
On this 5th day of January, 2001, upon Remand for further findings of the Court's Dismissal of Allen Weaver's ("Appellant") Appeal of conviction in the Court of Common Pleas, this is the Court's findings:
FACTS
On May 6, 1998 Appellant was convicted of Lewdness and Indecent Exposure Second Degree. For the charge of Lewdness Appellant was sentenced to two months Level V suspended for one year probation at Level II and fined $100. And for Indecent Exposure Second Degree, was sentenced concurrently to one month Level V suspended for one year probation at Level II. The Trial Court ordered Appellant to undergo a psychological evaluation as a condition of probation.
Relying upon 11 Del. C. § 5301 (c) and Article IV, § 28 of Delaware's Constitution, this Court dismissed Appellant's appeal for not satisfying the constitutional threshold for appeals from the Court of Common Pleas. This Court found that Appellant's sentence did not exceed one (1) month and he was not fined more than $100. Appellant appealed this Court's decision arguing that the requirement to undergo a psychological examination imposed an additional financial penalty because of the cost of the examination and thus Appellant's fine exceeds the $100 threshold for appeal to Superior Court. The Supreme Court remanded the case to this Court to answer the following two (2) questions, the second of which raised sua sponte:
1) Does the imposition of the condition that the defendant undergo a psychological evaluation impose an additional financial penalty, the effect of which is to satisfy the constitutional threshold, i.e., a fine exceeding one hundred dollars?
2) Does a sentence of imprisonment for more than one month, suspended for probation, meet the constitutional threshold in view of the detriment the defendant faces if his probation is thereafter revoked (under a standard of proof of preponderance of the evidence) and a term of imprisonment of more than one month is imposed as a result?
DISCUSSION
First the Court will address the issue of whether the imposition of a psychological examination constitutes an additional penalty. The State argues that it does not. The State quoting Marker v. State, contends that a fine is defined as "a sum imposed as punishment for an offense." The State notes that the Delaware Supreme Court in Brookens v. State previously held that the statutory 15% penalty assessment set forth in 11 Del. C. § 9012 is not punitive in nature, thus not a fine. The State further notes that the Delaware Supreme Court held in Benton v. State that restitution is remedial and compensatory and therefore not a punitive fine. The State asserts that 11 Del. C. § 4206 provides authorization for the sentencing court to order fines, restitution "or other conditions as the court deems appropriate." The State argues that the psychological examination falls under the category of "other conditions" as opposed to fines. Therefore, the State argues, that any additional financial obligation imposed as a result of the court ordered condition cannot be considered a fine, as defined by the Delaware Supreme Court in that it is not punitive in nature. The State asserts that the trial court ordered the evaluation in light of Appellant's criminal behavior to determine if a psychological problem requiring treatment existed. The State asserts that any cost paid by Appellant for the evaluation was not paid to the State. The State further asserts that rather than being punitive, the trial court's order was beneficial to Appellant to determine if he needed psychological treatment. Therefore, the State argues, the trial court's order requiring a psychological evaluation is not an additional punitive fine.Appellant argues that unlike the penalty assessment in Brookens the imposition of a psychological evaluation is not a compensatory penalty and nor is it restitution as was the case in Benton. Appellant asserts that "punitive" is defined as "serving for, concerned with, or inflicting punishment." Appellant contends that the financial obligation incurred for the psychological evaluation is punitive "as it is concerned with the punishment imposed by the trial judge." Therefore, Appellant argues that the costs he will incur for the evaluation must be considered in determining whether the jurisdictional threshold for appeal has been met.
Constitutional phrases are to be given their ordinary or plain meaning if possible. "Conversely, where the language is clear and unequivocal, the constitution must be held to mean that which it plainly states, there being no room for construction by the courts." The Court finds that the trial court's order requiring a psychological evaluation does not constitute a punitive fine. The ordinary or plain meaning of "fine" enunciated by the Delaware Supreme Court is `a sum imposed as punishment for an offense.' The Delaware Supreme Court also pronounced the definition of "sum" as `an indefinite or specified amount of money.' Accordingly, the trial court's order requiring a psychological evaluation is not a "sum imposed as punishment for an offense." The Court finds the imposition of a condition of probation, specifically a psychological evaluation, is neither punitive nor a sum. The Court agrees with the State that the imposition of the psychological exam is an "other condition" as provided by 11 Del. C. § 4206, as opposed to a fine.
Marker, 450 A.2d at 399 (citations omitted).
Id (citations omitted).
Id. (quoting the Webster's New Collegiate Dictionary (1977)).
Id.
Next, the State addresses the issue of whether a sentence of imprisonment suspended for probation meets the constitutional threshold for appeal to this Court. The State contends that, pursuant to previous decisions of both the Supreme and Superior Court, Appellant has no right to appeal a suspended term of imprisonment. The State notes that in Cooper v. State the Delaware Supreme Court summarily affirmed the Superior Court's decision holding that the appellant who was sentenced to six (6) months incarceration, suspended for one (1) year probation, did not have a right to appeal based upon the term of imprisonment imposed.
Cooper v. State, Del. Super., Cr.A. No. 98-06-0249, Graves, J. (Oct. 14, 1998) (Mem. Op.) aff'd by, Cooper v. State, Del. Supr., No. 485, 1998 (May 6, 1999) (ORDER).
Appellant asserts that Delaware case law, including Cooper, does not precisely address the question asked by the Supreme Court, i.e., "Does a sentence of imprisonment for more than one month, suspended for probation, meet the constitutional threshold in view of the detriment the defendant faces if his probation is thereafter revoked . . . and a term of imprisonment of more than one month is imposed as a result?" (emphasis added). However, Appellant acknowledges that Cooper is consistent with other Superior Court decisions which have found that a defendant did not meet the jurisdictional threshold for appeal when his or her imprisonment sentence of more than a month was suspended.
In Jewell v. State the appellant was sentenced to "an imprisonment term suspended for one (1) year period of probation" in the Municipal Court for the City of Wilmington. The Delaware Supreme Court held in Jewell that "[p]robation is sentencing without imprisonment, and where a sentence imposed on a defendant does not require a term of imprisonment, this Court is without jurisdiction to hear the appeal." Accordingly, the Jewell Court dismissed the appeal. The Delaware Supreme Court's decision summarily affirming the Superior Court's decision in Cooper is consistent with its decision in Jewell. Likewise, Superior Court has repeatedly dismissed appeals from lower courts for lack of jurisdiction where the imprisonment term for more than one month was suspended for probation, in accordance with Jewell. Appellant contends that none of the aforementioned cases expressly address the question raised by the Supreme Court regarding the possibility of imposition of an imprisonment term of more than one month if probation is violated. However, in Tyman v. State the defendant was sentenced to one (1) year incarceration suspended for probation after serving thirty (30) days and the Court dismissed the appeal holding that:
Jewell v. State, Del. Supr., No. 136, 1986, Walsh, J. (Jun. 5, 1986) (ORDER).
Id. (citing 11 Del. C. § 4302 (13); Sack v. State, Del. Supr., No. 46, 1986, Horsey, J. (Mar. 31, 1986) (ORDER)).
Id.
See Cooper at 1; Tyman v. State, Del. Super., Cr.A. Nos. 97-05-0773-0776, Graves, J. (Apr. 15, 1998) (Order at 1); Marsh v. Justice of the Peace Court No. 2, Del. Super., C.A. No. 98A-11-001, Graves, J. (Nov. 5, 1998) (Order at 1); Freeman v. State, Del. Super., Cr.A. No. 97-07-0118, Terry, R.J. (Mar. 19, 1998) (Order at 1); Harris v. State, Del. Super., Cr. A. Nos. 94-05-0392AC and 0393AC, Ridgely, P.J. (Dec. 2, 1994) (Order at 1).
Tyman v. State, Del. Super., Cr.A. Nos. 97-05-0773-0776, Graves, J. (Apr. 15, 1998) (ORDER).
Potential incarceration serves as an incentive to defendants to conduct themselves, upon release, appropriately so as to avoid further jail time. Article IV § 28 does not speak to potentiality, rather, the language clearly considers only cases in which the sentence "shall be imprisonment exceeding one (1) month."
Tyman at 2.
Accordingly, this Court finds that Appellants incarceration sentence suspended for probation does not reach the constitutional threshold allowing for an appeal to this Court. For the foregoing reasons, the Court finds upon REMAND that Appellant does not have a right to an appeal to this Court.