Opinion
ID No. 9609003434 IK96-11-003-R1, IK96-11-005-R1
Submitted: February 18, 2002
Decided: April 9, 2002
Upon Consideration of the Defendant's motion for Postconviction Relief Pursuant to Superior Court Criminal Rule 61
DENIED
John R. Garey, Esq., Deputy Attorney General, for the State.
Ronald L. Evans, Jr., pro se.
ORDER
Upon consideration of defendant's motion for Postconviction Relief, the Commissioner's Report and Recommendation, and the record in this case, it appears:
1. On August 11, 1997 the defendant pled guilty to one count of Assault in the First Degree, 11 Del. C. § 1448. Pursuant to a Rule 11 (e)(1)(c) plea agreement the Court then sentenced the defendant to a total of seven years at Level V incarceration, suspended after serving four and a half years for varying levels of probation.
2. On April 18, 2000 the Court modified the defendant's sentence on the weapons charge, with the consent of the State and Evans. The defendant was placed in the custody of the Department of Correction at Level V for a period of 3 years. Upon successful completion of the Key South Program, the balance of this sentence was suspended for 1 year at Level IV (Treatment), followed by 2 years at Level III Aftercare, followed by 6 months at Level II. The Level III portion shall be served consecutively to that imposed in IK96-11-003.
3. For some reason the defendant was released from the Key program into Level III without serving the Level IV portion of his sentence. The record is not clear on the reason for this, although it may be due to the time the defendant spent at Level V awaiting treatment space. Shortly after his release from Level V the defendant was picked up by Police under the Operation Safe Streets program for various probation violations. On September 5, 2000 the defendant was found guilty of violating his probation in a Safe Streets Violation of Probation hearing. After determining that the defendant had violated his probation by driving without a license and not paying on his restitution, the Court sentenced him to sixty actual days of incarceration followed by various levels of probation.
4. The defendant did not appeal his conviction or sentence on either the underlying charge or the violation of probation to the Delaware Supreme Court. Instead, he filed the pending motion for postconviction relief.
5. The matter was referred to the Superior Court Commissioner. After consideration, the Commissioner determined that the issues raised by the petitioner were barred by Rule 61(i)(3) or lacked merit. The Commissioner filed a Report and Recommendation recommending that the Court deny the defendant's motion for postconviction relief. A copy of her report is attached hereto and no written objections to the Report have been filed.
NOW, THEREFORE, IT IS ORDERED that:
a. Having conducted a de novo review of the proceedings I adopt the Commissioner's Report and Recommendation;
b. The defendant's motion for Postconviction Relief is denied.