Opinion
No. 380, 1998.
January 20, 1999.
Court Below: Superior Court of the State of Delaware, in and for Kent County in C.A. No. 98M-08-003.
AFFIRMED.
Unpublished Opinion is below.
CARLO MERILLO, III, Defendant Below, Appellant, v. STATE OF DELAWARE, Plaintiff Below, Appellee. No. 380, 1998. In the Supreme Court of the State of Delaware. Submitted: December 11, 1998. Decided: January 20, 1999.
Court Below: Superior Court of the State of Delaware, in and for Kent County in C.A. No. 98M-08-003.
Before WALSH, HOLLAND, and HARTNETT, Justices.
ORDER
This 20th day of January 1999, it appears to the Court that:
(1) The appellant, Carlo Merillo, III ("Merillo"), filed this appeal from the Superior Court's denial of Merillo's petition for a writ of habeas corpus. The appellee, State of Delaware ("State"), has moved to affirm the judgment of the Superior Court on the ground that it is manifest on the face of Merillo's opening brief that the appeal is without merit.
(2) It appears, from the limited record in this Court, that on June 12, 1997, Merillo was found guilty, in the Justice of the Peace Court, of one count of third degree assault, a class A misdemeanor. On the same date, Merillo pleaded guilty in the Justice of the Peace Court to one count each of offensive touching, an unclassified misdemeanor, and terroristic threatening, a class A misdemeanor. Merillo was immediately sentenced on all three offenses.
(3) A class A misdemeanor is punishable by up to one year incarceration at Level V. For purposes of this appeal, an unclassified misdemeanor is punishable by up to 30 days incarceration at Level V supervision. For the three offenses, Merillo was sentenced to a total of 13 months at Level V incarceration, all of which was suspended for three years at Level III probation.
(4) In March 1998, Merillo was convicted of violating his probation and again was sentenced in the Justice of the Peace Court. Merillo was sentenced to a total of 25 months at Level V incarceration, suspended after 13 months, followed by one year at Level III probation.
(5) Rather than file an appeal from the March 1998 sentence with the Court of Common Pleas, Merillo instead filed a petition for a writ of habeas corpus on August 3, 1998, with the Superior Court. By order dated August 5, 1998, the Superior Court summarily dismissed Merillo's petition on the basis that Merillo's commitment to the Department of Correction was regular on its face. This appeal followed.
(6) "Under Delaware law[,] a writ of habeas corpus is a remedy ordinarily available to the defendant only when there is an illegal restraint of the defendant's liberty. Generally, the scope of the writ is limited to determining questions of jurisdiction and the lawful power of the custodian to hold the petitioner." Where the commitment was regular on its face and the court clearly had jurisdiction over the subject matter, habeas corpus does not afford a remedy to the petitioner.
Evans v. State, Del. Supr., No. 8, 1988, Moore, J., 1988 WL 46628 (May 10, 1998) (citations omitted).
Jones v. Anderson, Del. Supr., 183 A.2d 177 (1962); Curran v. Woolley, Del. Supr., 104 A.2d 771 (1954).
(7) In his habeas corpus petition in the Superior Court and now in his opening brief on appeal, Merillo alleges that he is being unlawfully restrained by the Department of Correction. In support of his claim of illegal restraint, Merillo contends that the March 1998 sentence: (i) illegally imposed consecutive periods of Level V incarceration; (ii) imposed excessive periods of probation; and (iii) violated Sentence Accountability Commission ("SENTAC") sentencing guidelines. Furthermore, Merillo contends that he was not afforded the right to counsel at the March 1998 violation of probation hearing.
(8) Merillo argues that he is being illegally restrained because the March 1998 sentence imposed consecutive, instead of concurrent, periods of incarceration. Merillo's claim is without merit. In Delaware, all sentences of confinement must be consecutive.
(9) Merillo argues that he is being illegally restrained because the sentencing judge imposed excessive periods of probation. Merillo's claim is without merit. A period of probation . . . shall not exceed the maximum term of imprisonment "or 1 year, whichever is greater." In this case, each period of probation imposed upon Merillo did not exceed one year.
(10) Merillo argues that he is being illegally restrained because the sentencing judge failed to state her reasons for exceeding SENTAC guidelines. Merillo's claim is without merit. It is well-settled that SENTAC guidelines are not binding on the sentencing judge, and thus, a sentence imposed outside the guidelines offers no basis for relief.
See Mayes v. State, Del. Supr., 604 A.2d 839, 846 (1992) (ruling that SENTAC guidelines provide no basis for appeal).
(11) Finally, Merillo complains that he was not represented by counsel at the March 1998 violation of probation hearing. Merillo's claim is without merit. There is no absolute right to counsel at a violation of probation hearing. Furthermore, Merillo's claim is not a basis for habeas corpus relief.
Jones v. State, Del. Supr., 560 A.2d 1056 (1989).
See Golla v. State, Del. Supr., 135 A.2d 137 (1957) (ruling that habeas corpus can not be used to review error in conduct of trial).
(12) In Merillo's case, the Justice of the Peace Court had jurisdiction over the March 1998 adjudication of violation of probation. The court's subsequent commitment of Merillo to the custody of the Department of Correction to serve a prison sentence for the conviction, is valid on its face. Merillo continues to be held pursuant to that valid commitment, as Merillo is currently serving the 13 months at Level V incarceration that was imposed, and then suspended, at Merillo's original sentencing in June 1997. Thus, Merillo is not entitled to habeas corpus relief, i.e., release at this time, and the Superior Court was correct in summarily dismissing Merillo's petition for a writ of habeas corpus.
11 Del. C. § 2702(4), (7) and (8); 11 Del. C. § 4334(c).
(13) Although Merillo's habeas corpus claims are currently without merit, the record does reflect what may be a problem with regard to the sentence imposed by the Justice of the Peace Court in March 1998. When imposing a sentence upon a conviction of violation of probation, the sentencing court may order that the violator serve the sentence imposed for the original offense. Generally, the court may not impose a sentence greater than that originally imposed. In this case, the sentencing judge originally sentenced Merillo to a total of 13 months at Level V incarceration, all of which was suspended for three years at Level III probation. Upon resentencing in March 1998, the court imposed 25 months of Level V incarceration, suspended after 13 months. To the extent Merillo wants to challenge the March 1998 resentencing, he can file a motion for correction of sentence under Justice of the Peace Court Criminal Rule 35(a), which allows for the correction of an illegal sentence "at any time."
Ingram v. State, Del. Supr., 567 A.2d 868, 869-70 (1989); Collick v. State, Del. Supr., No. 212, 1998, Holland, J., 1998 WL 700170 (Aug. 10, 1998) (ORDER).
(14) It is manifest on the face of Merillo's opening brief that this appeal is without merit. The issues presented in this appeal are clearly controlled by settled Delaware law, and to the extent that judicial discretion is implicated, clearly there was no abuse of discretion.
NOW, THEREFORE, IT IS ORDERED that, pursuant to Supreme Court Rule 25(a), the appellee's motion to affirm is GRANTED. The judgment of the Superior Court is hereby AFFIRMED, with leave granted to Merillo to file a motion under Rule 35(a) for correction of sentence in the Justice of the Peace Court.
/s/ Randy J. Holland, Justice