Opinion
No. 432, 2000.
Submitted: January 4, 2001.
Decided: January 18, 2001.
Court Below — Superior Court of the State of Delaware, in and for Sussex County, Cr.A. No. S97-10-0082.
Before VEASEY, Chief Justice, WALSH and HOLLAND, Justices.
ORDER
This 18th day of January 2001, upon consideration of the briefs on appeal and the record below, it appears to the Court that:
(1) The defendant-appellant, Sean D. Prospero, Sr., filed this appeal from the August 21, 2000 order of the Superior Court denying his motion for suspension of fine/restitution. We find no merit to the appeal. Accordingly, we AFFIRM.
(2) In this appeal, Prospero claims that the Superior Court violated 11 Del. C., § 4106 by requiring him to pay restitution for all the items of stolen property encompassed within the original Information. He claims that he should not be required to pay restitution because the only item of stolen property encompassed within his plea agreement was a snowblower, which was recovered and returned to the victim undamaged.
(3) In 1997, Prospero was charged with burglary in the third degree and felony theft. In 1998, he entered a Robinson plea to one count of receiving stolen property. Prospero was sentenced to 1 year incarceration at Level V, to be suspended for 1 year at Level III, and was ordered to pay restitution, the amount of which was to be determined by the Presentence Office. On July 14, 1998, following receipt of the report from the Presentence Office, the Superior Court amended the sentencing order to include the specific amount of restitution owed.
Robinson v. State, Del. Supr., 291 A.2d 279 (1972) (permitting Superior Court to accept guilty plea where guilt of offense charged is not admitted); Prospero's plea agreement was entered into pursuant to Super. Ct. Crim. R. 11(e)(1) (C).
According to the Information, Prospero unlawfully entered a place of business called B. Brittingham's on Route 1, Sussex County, Delaware on or about September 11, 1997, and "did take with intent to appropriate" two Lawn Boy snow blowers, one Napa battery charger, one 150 BTU Bullet heater and one Homelite generator, with a total value of $2,050.00. The plea agreement signed by Prospero states that the defendant and the State agree to "PSI for Restitution," reflecting that restitution was to be paid in accordance with the report issued by the Presentence Office. The guilty plea form reflects that Prospero freely and voluntarily entered his guilty plea and was not promised anything not stated in the plea agreement. In its amended sentencing order, the Superior Court ordered restitution in the amount of $175.00 to B. Brittingham and $1,675.75 to CNA Insurance, in accordance with the report of the Presentence Office.
This language replaced language in the plea agreement stating that Prospero would pay "$2050 restitution to B. Brittingham," which was crossed out.
(5) Prospero's claim that he should not have to pay restitution is without merit. Contrary to the position taken by Prospero, there is nothing in 11 Del. C. § 4106 preventing the Superior Court from ordering restitution as it did in this case. Prospero agreed to be responsible for restitution to the victim of his crime in an amount to be determined by the Presentence Office. In accordance with the plea agreement, the Superior Court amended its sentencing order to reflect the report of the Presentence Office. Prospero has presented no evidence suggesting that he agreed to be responsible for restitution only with respect to one snowblower or that the Superior Court's amended sentencing order did not correctly reflect the information contained in the report of the Presentence Office.
That statute makes any person convicted of stealing property liable to the victim for the value of the property.
Prospero has presented no evidence of any error or abuse of discretion on the part of the Superior Court.
Benton v. State, Del. Supr., 711 A.2d 792, 799-800 (1998); Moore v. State, Del. Supr., 673 A.2d 171, 173 (1996).
NOW, THEREFORE, IT IS ORDERED that the judgment of the Superior Court is AFFIRMED.
BY THE COURT:
/s/ Joseph T. Walsh Justice