Opinion
No. 305, 2000.
December 13, 2000
Appeal from Superior Court, Sussex County; CrA VS97-10-0164-01.
AFFIRMED.
Unpublished Opinion is below.
BILLY G. JOHNSON, Defendant Below, Appellant, v. STATE OF DELAWARE, Plaintiff Below, Appellee. No. 305, 2000. Supreme Court of the State of Delaware. Submitted: October 30, 2000 Decided: December 13, 2000
Court Below: Superior Court of the State of Delaware, in and for Sussex County; Cr.A. No. VS97-10-0164-01.
Before VEASEY, Chief Justice, BERGER and STEELE, Justices
ORDER
This 13th day of December 2000, upon consideration of the briefs on appeal and the record below, it appears to the Court that:
(1) The defendant-appellant, Billy G. Johnson, filed an appeal from the May 26, 2000 order of the Superior Court finding that he committed a violation of probation ("VOP"). We find no merit to the appeal. Accordingly, we AFFIRM.
(2) In this appeal, Johnson claims that the requirements of Superior Court Criminal Rule 32.1 were not met and his due process rights were violated because i) there was no evidence presented at the hearing that he committed a probation violation; ii) he was not provided a written statement of the evidence against him; iii) he was not provided counsel to represent him at the hearing; iv) he was not provided a written statement of the alleged violation; and v) he was denied the opportunity to present evidence in his own behalf and question adverse witnesses.
(3) At the VOP hearing on May 26, 2000, Johnson admitted that he violated his probation by testing positive for illegal drugs on two separate occasions. The Superior Court sentenced Johnson to 2 years and 3 months incarceration at Level V, with credit for time served, to be suspended for 15 months Level III Aftercare upon successful completion of the Key Program.
(4) Johnson's claim that his rights were violated because he was not provided notice of the alleged violation or the evidence against him and was not permitted to present evidence in his own behalf and question adverse witnesses is without merit. The record reflects that the Superior Court sent Johnson a letter dated May 3, 2000, with a copy of the probation report dated April 19, 2000 attached. The letter and report provided Johnson with written notice of the alleged violation, disclosure of the evidence against him, an opportunity to appear and present evidence in his own behalf, the opportunity to question adverse witnesses, and notice of his right to retain counsel. In his reply brief, Johnson states that he never received this letter, but does not elaborate further. Even if Johnson did not receive the letter, there was no prejudice, since he admitted to violating his probation.
(5) Johnson's claim that his rights were violated because there was no evidence of a probation violation presented at the hearing is also without merit. The factual basis for the violation was reflected in the probation report, which noted that Johnson tested positive for illegal drugs on two occasions, and in the statement of the probation officer that Johnson had a crack pipe in his possession when he was arrested on an administrative warrant. Moreover, Johnson admitted he had violated his probation by testing positive for drugs, rendering presentation of the evidence against him unnecessary in any case.
(6) Johnson's final claim that the Superior Court violated his rights by failing to appoint counsel is equally without merit. The United States Supreme Court has held that "counsel should be provided in cases where the probationer raises `a timely and colorable claim (i) that he has not committed the alleged violation of the conditions upon which he is at liberty; or (ii) that, even if the violation is a matter of public record or is uncontested, there are substantial reasons which justified or mitigated the violation and make revocation inappropriate, and that the reasons are complex or otherwise difficult to develop or present.'" In this case, Johnson admitted to the violation and offered no reasons either justifying or mitigating the violation. Under these circumstances, the Superior Court was not obligated to appoint counsel to represent him.
In his reply brief, Johnson also claims that the Truth in Sentencing guidelines were violated. This issue is pending before this Court in a related matter, Johnson v. State, No. 319, 2000, and will not be addressed here.
Super. Ct. Crim. R. 32.1.
Jones v. State, Del. Supr., 560 A.2d 1056, 1058 (1989) (quoting Gagnon v. Scarpelli, 411 U.S. 778, 790 (1973)).
NOW, THEREFORE, IT IS ORDERED that the judgment of the Superior Court is AFFIRMED.
BY THE COURT:
/s/ Myron T. Steele Justice