Opinion
No. 633, 2011
02-21-2012
THOMAS A. NORRIS, Defendant Below-Appellant, v. STATE OF DELAWARE, Plaintiff Below-Appellee.
Court Below—Superior Court of the State of Delaware
in and for New Castle County Cr. ID No. 1106019537
Before STEELE, Chief Justice, HOLLAND and JACOBS, Justices
ORDER
This 21st day of February 2012, upon consideration of the appellant's opening brief and the appellee's motion to affirm pursuant to Supreme Court Rule 25(a), it appears to the Court that:
(1) The defendant-appellant, Thomas A. Norris, filed an appeal from the Superior Court's November 3, 2011 violation of probation ("VOP") sentencing order. The plaintiff-appellee, the State of Delaware, has moved to affirm the Superior Court's judgment on the ground that it is manifest on the face of the opening brief that the appeal is without merit. We agree and affirm.
Supr. Ct. R. 25(a).
(2) The record before us reflects that, on October 20, 2011, Norris entered a plea of guilty to Possession of Marijuana Within 1000 Feet of a School. He was sentenced to three years of Level V incarceration, to be suspended for six months of Level IV Home Confinement, to be followed by decreasing levels of probation. On October 25, 2011, Norris reported to Probation and Parole for his Level IV Home Confinement intake, part of which was to provide a urine sample. Norris was unable to produce a urine sample. However, he told his probation officer that his urine might be dirty. As a result, Norris immediately was charged with a VOP.
(3) The transcript of the VOP hearing reflects that Norris confirmed he had told his probation officer that his urine might be dirty. While disputed by Norris, the probation officer's testimony was that Norris told him at intake that he had used marijuana and Percocet within the past three days. Based on the evidence presented, the Superior Court found that Norris had committed a VOP and sentenced him to three years of Level V incarceration, to be suspended after six months for decreasing levels of supervision.
(4) In his appeal from the Superior Court's VOP sentence, Norris claims that a) he should not have been sentenced for a VOP because he was never informed of the conditions of his probation; b) he should not have been sentenced for a VOP because he was not given enough time to provide a urine sample; c) the Superior Court sentenced him for the VOP with a closed mind; and d) there was prosecutorial misconduct during the entire VOP hearing.
(5) Norris claims that he should not have been sentenced for a VOP, first, because he was never informed of the conditions of his probation and, second, because he was not given sufficient time to provide a urine sample. This Court has ruled previously that the Superior Court has discretion to revoke a grant of probation even before the defendant has begun to serve his probationary sentence. Here, there was evidence presented at the VOP hearing that Norris had ingested drugs within three days of his Level IV intake. Moreover, Norris admitted that he told his probation officer at intake that his urine might be dirty. In these circumstances, we find no abuse of discretion on the part of the Superior Court in finding that Norris had committed a VOP and in sentencing him accordingly. We, therefore, conclude that Norris' first two claims are without merit.
Smith v. State, Del. Supr., No. 37, 2007, Berger, J. (May 7, 2007) (citing Williams v. State, 560 A.2d 1012, 1015 (Del. 1989)).
(6) Norris next claims that the Superior Court sentenced him on the VOP with a closed mind. A judge sentences a defendant with a closed mind when the sentence imposed is based upon a preconceived bias rather than consideration of the nature of the offense and the character of the offender.The transcript of Norris' VOP hearing reflects that the Superior Court judge listened to the testimony of both Norris and the probation officer, as well as the representations made by Norris' counsel, and made his decision based upon the evidence presented. In the absence of any record evidence that the judge sentenced Norris with a closed mind, we conclude that Norris' third claim also is without merit.
Weston v. State, 832 A.2d 742, 746 (Del. 2003).
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(7) Norris' fourth, and final, claim is that there was prosecutorial misconduct during the entire VOP hearing. The transcript of the VOP hearing reflects that two probation officers, and no prosecutor, appeared at the hearing. Again, the transcript reflects that the judge's decision flowed directly from the evidence and arguments presented. The transcript reflects no impropriety on the part of any participant in the hearing. As such, we conclude that Norris' fourth claim also is without merit.
(8) It is manifest on the face of the opening brief that this appeal is without merit because the issues presented on appeal are controlled by settled Delaware law and, to the extent that judicial discretion is implicated, there was no abuse of discretion.
NOW, THEREFORE, IT IS ORDERED that the State's motion to affirm is GRANTED. The judgment of the Superior Court is AFFIRMED.
BY THE COURT:
Randy J. Holland
Justice