Summary
declining to address "indecipherable" allegation in motion for postconviction relief because the "[c]ourt cannot deal with assertions which it cannot understand."
Summary of this case from State v. DorseyOpinion
CRIMINAL ACTION NO. S96-07-0007 — ATT. THEFT, S96-07-0008 — R.S.P. (M) DOB: 6-5-78 DEF. ID# 9606023087 SBI# 00283423.
July 27, 2000.
ORDER
On this 27th day of July, 2000, upon consideration of the defendant's Motion for Postconviction Relief, the Commissioner's Proposed Findings of Fact and Recommendations, and the record in this case, it appears that:
1) The procedural posture of this case is rather complex. 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. 596-07-0007") 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"). This motion currently is before the Court.
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" and this motion also is presently pending before the Court.
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)
2) Upon the return of jurisdiction of this matter to this Court, the Court referred the motions for postconviction relief and for dismissal of sentence to Superior Court Commissioner Alicia B. Howard pursuant to 10 Del. C. § 512 (b) and Superior Court Criminal Rule 62 for proposed findings of facts and conclusions of law. On June 26, 2000, the Commissioner filed Proposed Findings of Fact and Recommendations recommending that the Court deny defendant's Rule 61 motion and his motion for dismissal of sentence. No objections to the Proposed Findings of Fact and Recommendations have been filed.
NOW, THEREFORE, after careful and de novo review of the record in this action and for the reasons stated in the Commissioner's proposed Findings of Fact and Recommendations dated June 26, 2000,
IT IS ORDERED that:
(1) The well-reasoned Commissioner's Proposed Findings of Fact and Recommendations are adopted by the Court;
(2) Defendant's Motion for Postconviction Relief is DENIED; and
(3) Defendant's Motion for Correction of Sentence is DENIED. ____________ JUDGE
oc: Prothonotary xc: Hon. Alicia B. Howard Attorney General's Office Order Distribution (w/Proposed Findings of Fact and Recommendations