Opinion
Supr.Ct. No. 164, 2000, Super.Ct.Cr.A. No. N-92-12-0001-01.
Decided: November 2, 2000.
Dear Justice Walsh:
The Supreme Court has remanded an appeal of a denial of Archie Crosby's second motion for postconviction relief to determine the issue of whether he was on probation when certain violations occurred. The sentencing record for Crosby shows the following and establishes that he was on probation when the violations occurred.
1. On December 1, 1992, Crosby was sentenced as follows:
(a) On the charge of possession with intent to deliver, Cr.A. No. IN-92-06-0225, I sentenced Crosby to one year in jail suspended immediately for level 2 probation to end January 4, 1993.
(b) On the charge of possession, reduced from the original delivery of cocaine charge, Cr.A. No. IN-92-04-1745, Crosby was sentenced to three years at level 5 beginning on January 4, 1993 with 28 days credit time. All three years were made mandatory pursuant to 11 Del. C. § 4204.
(c) On the charge of maintaining a vehicle/dwelling for keeping controlled substances, Cr.A. No. N-92-12-0001-NI, Crosby was sentenced to two years at level 5, suspended immediately for two years level 3 probation to run consecutively to the above sentence.
2. Crosby reported to the Department of Correction on January 4, 1993 to start serving the sentence in (b) above. Receiving 28 days credit time, his sentence "began" December 7, 1992.
3. Judge Babiarz sentenced Crosby on February 11, 1993 for violation of probation stemming from an original theft charge, Cr.A. No. IN-87-06-0752. He received 18 months in jail, level 5, which was to run consecutively to the three-year sentence in Cr.A. No. IN-92-04-1745 (#2(b) above). At the same time, Judge Babiarz discharged Crosby from probation, as unimproved, on a companion sentence of resisting arrest, Cr.A. No. IN-87-06-0751.
4. With earned good time, Crosby was released from jail on August 27, 1996. From that date until the original ending date of his jail sentences, June 5, 1997, he was on conditional release, not probation. During this ten months of conditional release, Crosby was subject to the supervision of the Board of Parole and subject to a return to jail by an order of that Board for violating the terms of conditional release.
11 Del. C. § 4348; Dixon v. Williams, Del.Super., C.A. No. 00M-08-023, Herlihy, J. (August 31, 2000).
5. Crosby's probationary sentence did not start until he completed his conditional release. This means that he went on probation on June 5, 1997. At that time, the Department of Correction and Probation and Parole believed, however, that Crosby was to serve a three-year probationary sentence starting on that date.
6. The violations which Crosby committed occurred in September 1998 while he was serving the second year of his probationary sentence. The violations were for failure to report and moving without notification.
7. The probation officer's violation report was issued October 13, 1998 and I authorized a capias on October 20, 1998. The report indicated the maximum expiration date of Crosby's probationary sentences was June, 2000. The capias was returned on March 9, 1999. The probation officer's report, however, listed two probationary sentences Crosby was supposed to be serving. One was the two-year sentence and the other was the sentence in Cr.A. No. IN-92-06-0225. The probation officer also mistakenly believed Crosby had a total of three years of probation to serve.
8. I sentenced Crosby for violation of probation on April 16, 1999. At that time, I, too, believed he was serving a total of three years probation. Since the violations had occurred within the probationary period, he was subject to sentencing for the violations. Accordingly, I sentenced him to three years at level 5 (combining the two sentences) suspended upon completing New Hope or Key (drug programs) for the balance at level 4 Crest (drug treatment follow-up) and after completion of that the balance at level 3.
9. On June 1, 1999, Judge Silverman sentenced Crosby to three years at level 5 suspended after one year on an unrelated charge of possession of heroin, Cr.A. No. IN-99-04-0769.
10. Crosby filed a motion to correct an illegal sentence on January 4, 2000 to correct the three-year sentence imposed on April 16, 1999. On February 18, 2000, I granted his motion, in part, by deleting the one-year sentence in Cr.A. No. IN-92-06-0225 (copy enclosed). That left intact the two-year sentence reimposed on April 16th in Cr.A. No. N-92-12-0001-NI.
11. On March 8, 2000, Crosby's request to correct his two-year sentence was denied.
12. I denied his motion for postconviction relief on April 5, 2000, which is the matter on appeal.
13. While his appeal was pending, Crosby wrote me on August 6, 2000 to reduce his three-year sentence to a two-year sentence. My response was to issue another corrected sentence order deleting the one-year sentence and leaving the two-year sentence intact (copy enclosed). In a footnote on page 4 of its remand order, the Supreme Court states that this Court is without authority to amend the sentence, since the other matter was on appeal. This leaves Crosby's three-year sentence intact.
14. Before issuing that corrected sentence on August 22, 2000, however, I asked Judge Silverman to amend his one-year jail sentence to a period of probation. This request was made to allow Crosby to get promptly into drug treatment and to get into non-level 5 aftercare following his level 5 drug treatment. Otherwise, Judge Silverman's one-year jail sentence would have delayed level 5 treatment and aftercare for almost a year (since any of my level 5 time was suspended upon Crosby's completion of level 5 drug treatment).
15. Judge Silverman responded to my request on August 18, 2000 by suspending his level 5 time to allow him to get to treatment (copy enclosed). While any matter from Judge Silverman's case is not on appeal and his sentence modification does not suffer from the same alleged infirmity as my August 22, 2000 sentence, his modification is premised solely on my efforts to get Crosby into much needed drug treatment.
16. When I imposed the original violation of probation sentences in April 1999, I mistakenly believed Crosby was serving a total of three years probation. Since then, I have determined the third year should not be there. But, that leaves Crosby with a two-year probationary sentence. That period of probation started June 5, 1997 and would have ended June 4, 1999. Since his violations occurred in 1998. he was unmistakenly on probation in September 1998 when the violations occurred.
17. Even though he has his appeal pending, Crosby has continued to file requests for sentence reduction, including a petition for habeas corpus around the time of the remand. It is not unusual for the judges of this Court to get sentence reduction requests while an appeal is pending. Obviously, in light of the footnote, it is inappropriate for us to act in any way on these requests.
18. Following the footnote reminder that this Court cannot act because of the appeal, I have denied these request for lack of jurisdiction.
CONCLUSION
In short, the answer to the Supreme Court's remand is that Crosby was on probation when he committed his violations. Any representations to the contrary prompting this remand are without foundation.