Opinion
ID No. 9609003434 IK96-11-0003-R1, IK96-11-0005-R1
January 14, 2002
Upon Defendant's Motion For Postconviction Relief Pursuant to Superior Court Criminal Rule 61
John R. Garey, Esq., Deputy Attorney General, Dover, Delaware, for the State of Delaware.
Ronald L. Evans, Jr., pro se.
COMMISSIONER'S REPORT AND RECOMMENDATIONS
On August 11, 1997, Defendant Ronald L. Evans, Jr. ("Evans") pled guilty to one count of Assault in the First Degree, 11 Del. C. § 613, as a lesser included offense of Attempted Murder, and to one count of Possession of a Deadly Weapon by a Person Prohibited, 11 Del. C. § 1448. Pursuant to a Rule 11(e)(1)(c) plea agreement the Court then sentenced Evans to a total of seven years at Level V incarceration, suspended after serving four and a half years for varying levels of probation. The conditions of Evans' probation was that he pay his fines, costs and restitution during probation, that he not possess or consume any illegal substances, and that he perform community service.
On April 18, 2000 the Court modified Evans' sentence on the weapons charge, with the consent of the State and Evans, as follows:
"The defendant is 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 is 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.
For some reason Evans 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 Evans spent at Level V awaiting treatment space. In any event, shortly after his release from Level V, Evans was picked up by police under the Operation Safe Streets program for various probation violations. On September 5, 2000 a Safe Streets violation of probation hearing was held and Evans was found guilty of violating his probation. The allegations included amassing numerous new arrests including drug and driving charges and failure to pay on his fines and restitution.
During the violation hearing Evans explained to the Court that he had never served his Level IV time or been given Aftercare. After determining that Evans had violated his probation by driving without a license and not paying on his restitution the Court sentenced Evans pursuant to the probation officers recommendation. Evans agreed with the recommendation and thanked the Judge following sentencing.
Transcript of VOP hearing at 2-3.
Transcript of VOP hearing at 7-9.
Evans 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 pursuant to Superior Court Criminal Rule 61.
In his motion Evans raises the following three grounds for relief:
Ground one: Unfulfilled Modification Order. In this case the defendant was suppose to be placed at 1 year of level (4) treatment. Instead defendant was placed on level (3) probation without his specific court ordered treatment instructions.
Ground two: Denial of Court-Ordered Treatment. On April 19, 2000 Defendants sentence was modified and suspended for defendants placement of 1 year of level (4) treatment, followed by (2) years at level (3) Aftercare followed by (6) months at level (2) probation.
Ground three: The right to effective assistance of counsel. Defendant feels that Sandra W. Dean as his counsel for his violation of probation would have conscientiously searched the records and found that he was denied the opportunity to participate in specific court-ordered treatment before his violation there could been (sic) some sort of defense.
Under Delaware law the Court must consider the procedural requirements of Superior Court Criminal Rule 61(i) before addressing the merits of any postconviction relief claim. Evans failed to raise any of the issues pending at the hearing on the violation of probation, at his sentencing or on direct appeal to the Supreme Court. His claims are therefore barred by Rule 61(i)(3) absent a demonstration of both cause and prejudice. Evans in his third ground for relief alleges ineffective assistance of counsel, however, it is clear under Delaware law that he is not entitled to the assistance of counsel at a violation of probation hearing absent a colorable claim he did not violate his probation or that there existed complex issues. In this case, although Evans denied in part that he had violated his probation, the Court found the testimony of Evans' probation officer more credible and found Evans guilty of violating his probation. This was not a complex issue nor were Evans' allegations of innocence colorable. For these reasons, Evans did not have a right to counsel and his second ground for relief is meritless.
Doran v. State, Del Supr., No. 233, 1991, Moore, J. (August 15, 1991) (ORDER); Jones v. State, Del. Supr., 560 A.2d 1056 (1989).
Turning to Evans' first and second grounds for relief, he has failed to allege cause or prejudice for his failure to have raised these issues sooner and they are therefore barred by Rule 61(i)(3) absent a jurisdictional challenge or a colorable claim of miscarriage of justice stemming from a constitution violation that "undermines the fundamental legality, reliability, integrity or fairness of the proceedings leading to the judgment of conviction." Evans has made no attempt to allege any such violations and as such these claims should be procedurally barred. Indeed Evans clearly was aware of these issues at the time of the hearing since he mentioned them at that time.
Super. Ct. Crim. R. 61(i)(5).
I therefore recommend the Court deny Evans' motion as procedurally barred by Rule 61(i)(3).