Opinion
CRIMINAL ACTION NO. S96-07-0007 — ATT. THEFT, S96-07-0008 — R.S.P. (M) DOB: 6-5-78. DEF. ID# 9606023087. SBI# 00283423.
DATE SUBMITTED: May 31, 2000.
DATE DECIDED: June 26, 2000.
COMMISSIONER'S PROPOSED FINDINGS OF FACT AND RECOMMENDATIONS ON DEFENDANT'S MOTION FOR POSTCONVICTION RELIEF
Pending before the Court in this matter are two motions which defendant Omar Dorman ("defendant") has filed. The Court has referred the matter to the Commissioner for proposed findings of fact and recommendations. This constitutes such.
PROCEDURAL HISTORY AND PROPOSED FINDINGS OF FACT
In June of 1996, defendant was arrested on charges of burglary in the third degree; attempted theft (felony) ; and receiving stolen property (misdemeanor)
On July 5, 1996, defendant entered a guilty plea to the charge of attempted theft ("Cr. A. No. S96-07-0007") and receiving stolen property (misdemeanor) ("Cr. A. No. S96-07-0008"). As to Cr. A. No. S96-07-0007, the Court ordered that defendant be placed at Level 5 for a period of one (1) year, with credit for time served, and the sentence be suspended for one (1) year at Level 2 probation. As to Cr. A. No. S96-07-0008, the Court ordered that defendant be placed at Level 5 for a period of six (6) months, consecutive to Cr. A. No. S96-07-0007, and the sentence be suspended for one (1) year of probation at Level 1. Defendant did not appeal therefrom.
On February 21, 1997, a violation of probation hearing was held on the allegations that defendant had violated his probation by incurring new criminal charges. Defendant did not request the Court to appoint counsel before or during the violation of probation hearing. Defendant acknowledged that the violation of probation allegations were accurate. Defendant was adjudged guilty of violation of probation. He was sentenced as follows:
As to S96-07-0007,
Effective February 21, 1997, the defendant is placed in the custody of the Department of Correction at Supervision Level 5 for a period of one (1) year with credit for time served. After serving six (6) months, the balance of this sentence is suspended for six (6) months at Level 4 Work Release/Home Confinement. The defendant shall be held at Level 5 until space is available at Level 4.
As to 596-07-0008,
The defendant is placed in the custody of the Department of Correction at Supervision Level 5 for a period of six (6) months consecutive to Cr. A. No. S96-07-0007. This sentence is suspended for six (6) months at Level 4 Work Release/Home Confinement consecutive to Cr. A. No. S96-07-0007.
Defendant did not appeal from the violation of probation proceedings and/or sentence.
In April, 1997, defendant pled guilty to some of the charges upon which the February 21, 1997 violation of probation was based; the remaining charges were nolle prossed.
On December 28. 1999, defendant filed a motion for postconviction relief pursuant to Superior Court Criminal Rule 61 ("Rule 61 motion"). The contentions contained therein are addressed below.
On January 14, 2000, defendant again was adjudged guilty of violation of probation. He was sentenced on that date as follows. As to Cr. A. No. S96-07-0007, he was sentenced to six (6) months at Level 5, with credit for time served, and after serving 90 days at Level 5, the sentence was suspended for three (3) months at Level 3. As to Cr. A. No. S96-07-0008, he was sentenced to six (6) months at Level 5, suspended for six (6) months at Level 3 probation.
On January 26, 2000, defendant filed a "Motion for Dismissal of Sentence".
Defendant appealed the January 14, 2000 violation of probation proceedings and sentence. This Court stayed decisions on the Rule 61 motion and the motion for dismissal of sentence during the pendency of the appeal.
Defendant contended in the appeal that his constitutional right to counsel was violated because he was not provided an attorney at his January 14, 2000 violation of probation hearing and his constitutional right to due process was violated because the hearing was not full, fair and adequate. In an order dated April 14, 2000, the Supreme Court ruled that defendant's claim he was entitled to legal representation at the violation of probation hearing was meritless as was his claim that he did not receive a full and fair hearing. Dorman v. State, Del. Supr., No. 34, 2000, Holland, J. (April 14, 2000)
Now that the appeal is final, jurisdiction of the matter has returned to this Court, and it is appropriate to address the pending motions.
DISCUSSION AND RECOMMENDATIONS
I. Rule 61 Motion pertaining to February 21, 1997 Violation of Probation
I first deal with defendant's Rule 61 motion.
In his Rule 61 motion, defendant asserts three grounds which he contends entitle him to relief with regard to the violation of probation proceedings and order of February 21, 1997.
First, he alleges that his due process rights were violated when he was convicted of a violation of probation based upon charges which remained open.
Defendant's second allegation is as follows:
The Honorable William Swain Lee said "I put you on probation to keep you out of troble [sic]. I was not sentence [sic] so Probation Conduction One was never violated
This allegation is indecipherable. The Court cannot deal with assertions which it cannot understand. Consequently, I recommend that the Court deny this assertion out of hand without examining any of the procedural bars.
Defendant's final contention is that he had no legal assistance of counsel at the February 21, 1997 hearing. Defendant maintains that he and his mother informed the Public Defender's Office that defendant desired counsel at the hearing.
The Court first must determine if there are any procedural bars to the claims in the postconviction relief motion, and if there are, the Court must apply them. Younger v. State, Del. Supr., 580 A.2d 552, 554 (1990)
This motion is not time-barred since it was brought within three years from the date when the conviction became final. Rule 61(i)(1). See Jackson v. State, Del. Supr., 654 A.2d 829, 833 (1995). In addition, since this is defendant's first motion for postconviction relief, the bar of Rule 61(i)(2) does not apply.
In Rule 61(i)(2), it is provided:
(i) Bars to relief.
* * *
(2) Repetitive motion. Any ground for relief that was not asserted in a prior postconviction proceeding, as required by subdivision (b)(2) of this rule, is thereafter barred, unless consideration of the claim is warranted in the interest of justice.
However, the procedural bar of Rule 61(i)(3) applies to the two claims remaining to be examined. Therein, it is provided:
Any ground for relief that was not asserted in the proceedings leading to the judgment of conviction, as required by the rules of this court, is thereafter barred, unless the movant shows:
(A) Cause for relief from the procedural default and
(B) Prejudice from violation of the movant's rights.
As explained in Downes v. State, Del. Super., Cr. A. No. 94-09-0152, et al., Graves, J. (August 12, 1999) at 3: "This is a two-pronged requirement imposed upon the defendant, and if he fails to satisfy either the cause prong or the prejudice prong, then the procedural bar shall apply."
This defendant may avoid the bar of Rule 61(i)(3) if he shows "the court lacked jurisdiction" or if he establishes "a colorable claim that there was a miscarriage of justice because of a constitutional violation that undermined the fundamental legality, reliability, integrity or fairness of the proceedings leading to the judgment of conviction." Rule 61(i)(5).
In this case, defendant did not raise the issues he now raises at any point in the violation of probation proceedings nor did he pursue these issues on appeal. Thus, I recommend the Court conclude the claims are procedurally barred. In addition, defendant has not attempted to establish that either the jurisdictional exception or the colorable claim exception exists in connection with any of the claims which are procedurally barred pursuant to Rule 61(i)(3) Consequently, I recommend that the Court conclude these exceptions do not apply.
As an aside, I note that even if the Court examined the two contentions on their merits, it would have to conclude there was no prejudice established. The contention that defendant's due process rights were violated because he was convicted of a violation of probation when the charges upon which the violation was based remained open is legally meritless. Cooper v. State, Del. Supr., 744 A.2d 987 (1999). The contention that defendant's rights were violated because he was not afforded counsel also is meritless. Defendant never requested that counsel be appointed to represent him. Defendant had no absolute right to counsel. Dorman v. State, supra at 2. Furthermore, defendant did not deny the alleged violations nor did defendant offer any reason which justified or mitigated the violation or made the revocation inappropriate. See id. at 2-3.
In conclusion, I recommend that the Court deny the Rule 61 motion on the bases that ground two is indecipherable and grounds one and three are procedurally barred.
II. Dismissal of Sentence
The best way to convey defendant's contention in the motion for dismissal of sentence is to quote therefrom. Defendant states:
On 1-14-00 Movant was sentence [sic] on a VOP by the Honorable Richard F. Stokes as too [sic] 96-07-0007 6 mos level V after serving 90 day's [sic] susp [sic] for 90 day [sic] level III and as too [sic] 96-07-0008 6 mos level V after serving 90 day's [sic] susp [sic] for 90 day's [sic] level III. I was given 90 day [sic] for VOP and 90 day [sic] for the escape after conviction Department of Correction records department state's [sic] the Escape is still open; to try to sentence me again would constitute double Jeopardy.
On 12/28/99 I was sentence [sic] by the Honorable Richard S. Gebelien [sic] to 90 day [sic] level V for leaving Sussex Work release sentence. (That Escape) I recieved [sic] a total of 9 month's [sic] level V. Movant right [sic] to due process was violated by Superior Court
Movant also has what is an illegal sentence. Superior Court Rule state [sic] you can only recieve [sic] level V time on the lead charge so to give movant two 90 day sentences at level V is an illegal sentence as well as double jeopardy.
I will treat defendant's motion as one to correct an illegal sentence pursuant to Superior Court Criminal Rule 35(a).
In Superior Court Criminal Rule 35(a), it is provided:
Correction of sentence. The court may correct an illegal sentence at any time and may correct a sentence imposed in an illegal manner within the time provided herein for the reduction of sentence.
Defendant argues that the double jeopardy clause was violated when the Court sentenced him on a violation of probation, which was based upon the escape charge, as well as on the escape charge. Defendant's argument fails because the two sentences he recieved, although triggered by the same acts, arose from two distinct charges. See State v. Dorsey, Del. Super., Cr. A. No. IN92-04-0831R1, Gebelein, J. (November 1, 1995) at 5-7, aff'd, Del. Supr., 679 A.2d 469 (1996); United States v. Redd, 9th Cir., 759 F.2d 699, 701 (1985). Thus, I recommend the Court conclude there was no double jeopardy violation.
Defendant also argues that there is a Court rule providing that Level V time may be imposed only on a lead charge. There is no such rule.
Based on the foregoing, I recommend that the Court deny defendant's motion for dismissal of sentence.
CONCLUSION
I recommend that the Court:
1) Deny defendant's Rule 61 motion; and
2) Deny defendant's motion for dismissal of sentence.
_______________________ Commissioner