Opinion
No. 373, 2002
Submitted: October 3, 2002
Decided: October 16, 2002
Court Below-Superior Court of the State of Delaware, in and for New Castle County Cr.A. No. VN96-02-0894 VN95-02-1407 VN96-02-0192 VN96-02-0216
Affirmed.
Unpublished opinion is below.
SCOTT MELODY, Defendant Below-Appellant, v. STATE OF DELAWARE, Plaintiff Below-Appellee. No. 373, 2002 In the Supreme Court of the State of Delaware. Submitted: October 3, 2002 Decided: October 16, 2002
Before WALSH, HOLLAND and STEELE, Justices
Randy J. Holland, Justice
ORDER
This 16th day of October 2002, upon consideration of the appellant's brief filed pursuant to Supreme Court Rule 26(c), his attorney's motion to withdraw, and the State's response thereto, it appears to the Court that:
(1) The defendant-appellant, Scott Melody, was found in violation of probation ("VOP"). Among other things, a prior Level V sentence for robbery was reimposed, to be suspended after successful completion of a Level V substance abuse program for decreasing levels of probation. This is Melody's direct appeal.
The original sentence in IN96-02-0894 was 10 years incarceration at Level V, to be suspended after 4 years for 6 years at decreasing levels of probation.
In addition, Melody was sentenced to 1 year at Level II in IN96-02-0216 and to 1 year at Level II in IN96-02-0192, and was discharged as unimproved from his sentence in IN95-02-1407.
(2) Melody's trial counsel has filed a brief and a motion to withdraw pursuant to Rule 26(c). The standard and scope of review applicable to the consideration of a motion to withdraw and an accompanying brief under Rule 26(c) is twofold: (a) the Court must be satisfied that defense counsel has made a conscientious examination of the record and the law for claims that could arguably support the appeal; and (b) the Court must conduct its own review of the record and determine whether the appeal is so totally devoid of at least arguably appealable issues that it can be decided without an adversary presentation.
Penson v. Ohio, 488 U.S. 75, 83 (1988); McCoy v. Court of Appeals of Wisconsin, 486 U.S. 429, 442 (1988); Anders v. California, 386 U.S. 738, 744 (1967).
(3) Melody's counsel asserts that, based upon a careful and complete examination of the record, there are no arguably appealable issues.
By letter, Melody's counsel informed Melody of the provisions of Rule 26(c) and provided him with a copy of the motion to withdraw, the accompanying brief and the complete trial transcript. Melody was also informed of his right to supplement his attorney's presentation. Melody responded with a brief that raises five issues for this Court's consideration.
The State has responded to the position taken by Melody's counsel as well as the issue raised by Melody and has moved to affirm the Superior Court's judgment.
(4) Melody raises five issues for this Court's consideration. He claims his due process rights were violated because: a) there was no competent evidence to prove the VOP's; b) he should not have been sentenced to a prison term for the VOP's; c) he did not have an opportunity to confront adverse witnesses; d) he did not have an opportunity to question his probation officer, who was not present at the hearing; and e) he should not have been violated on the probationary portion of his robbery sentence, since he was not serving that sentence at the time of the VOP.
(5) The VOP hearing transcript reflects that the supervisor of Melody's probation officer appeared at the hearing. The supervisor testified to two violations-a urine screen that showed a positive result for opiates and cocaine and several infractions of the mandatory curfew. In response, Melody stated that he had not used drugs for 6 years. The supervisor disputed that statement, noting that Melody had admitted to him and to his probation officer at the time of his arrest that he had used cocaine but thought it would already be out of his system. Melody explained his admission as follows: ". . . I have been through the system before. I was hoping if I admitted something, and said I was sorry, they would let me slide. . . ." The supervisor also testified that Melody's probation officer believed that Melody was still using drugs, did not appear to want to stop and was in need of further substance abuse treatment.
(6) Melody's claim that there was no competent evidence to support the finding of a VOP is meritless in light of his drug test results and his admission that he had taken cocaine. His claim that his robbery sentence should not have been reimposed is meritless, since, upon finding a VOP, the Superior Court was within its discretion to reimpose any period of incarceration remaining on that sentence. Melody's claim that he was not allowed to confront adverse witnesses, and in particular his probation officer, is meritless, since the transcript reflects that he was given ample opportunity to contradict not only the statements of his probation officer's supervisor, but also the statements of his probation officer, which were testified to by the supervisor. Also unavailing is Melody's final claim that he should not have been violated on a probationary sentence he was not serving, since the Superior Court had broad discretionary authority to terminate that probationary sentence "at any time."
Ingram v. State, 567 A.2d 868, 869 (Del. 1989).
The supervisor's hearsay testimony was properly admitted at the VOP hearing. Brown v. State, 249 A.2d 269, 272 (Del. 1968).
DEL. CODE ANN. tit. 11, § 4333; Williams v. State, 560 A.2d 1012, 1015 (Del. 1989).
(7) The Court has reviewed the record carefully and has concluded that Melody's appeal is wholly without merit and devoid of any arguably appealable issue. We are also satisfied that Melody's counsel has made a conscientious effort to examine the record and has properly determined that Melody could not raise a meritorious claim in this appeal.
NOW, THEREFORE, IT IS ORDERED that the State's motion to affirm is GRANTED. The judgment of the Superior Court is AFFIRMED.
The motion to withdraw is moot.