Opinion
No. 9610010004
Decided: March 22, 2004.
Robert C. Mumford, SBI No. 00276677 Sussex Community Corrections Center Violation of Probation Unit Georgetown, DE.
Dear Mr. Mumford:
On December 17, 2003, you filed a Motion for Postconviction Relief. In your Motion, you claim you should be granted relief because you were sentenced on a violation of probation based upon new charges on which you were innocent until proven guilty, and that there was a violation of double jeopardy because you faced not only the violation of probation but a possible sentence on the new charges.
Since the filing of this Motion, the Court has obtained a transcript of your violation of probation hearing, as well as the criminal docket in the Court of Common Pleas which evidences what has taken place as to the new charges. That docket reflects that on January 21, 2004 you were adjudicated guilty of resisting arrest and sentenced to 30 days at the VOP Center. The subsequent Motion for Modification of Sentence was denied.
PROCEDURAL BARS
Before the Court can consider the merits of any Rule 61 application, it must consider whether the procedural bars of Rule 61(i) are applicable. If so, they should be applied.
The sentence of which you complain in this Court occurred on October 21, 2003, immediately following a violation of probation hearing. At that contested hearing, the Court heard testimony that you were stopped by a police officer concerning how you were operating a motor scooter. He testified he observed you throw something away as you were being stopped. He then asked you to walk back to check on what had been thrown away. You then ran and picked up the object and continued to flee from the officer. Subsequently he observed you throw an object into some bushes but was unable to find it. You subsequently acknowledged that you had a cutting device on you and you were worried about your safety. You knew that would cause a problem with your probation.
Subsequently I determined that the State had met its burden required in the violation of probation hearing and sentenced you. You were represented by counsel during the violation of probation hearing and sentencing. There was no appeal taken. Therefore, I find that under Rule 61(i)(3), you have not shown cause for not asserting these claims at your violation of probation hearing, nor have you shown cause for your failure to appeal to the Delaware Supreme Court. Nor have you attempted to explain any prejudice. This would be difficult because you are under the mistaken belief that you cannot be punished for a violation of probation based upon new criminal conduct. Whether or not you are found guilty of the new criminal conduct is irrelevant because there is a different standard of proof for the new criminal conduct, i.e., guilt beyond a reasonable doubt and for the violation of probation.
This is all moot because you have subsequently pled guilty to resisting arrest which is exactly what the testimony established at the violation of probation hearing.
Your Motion for Postconviction Relief is denied.