Opinion
ID No: 9901002563, Cr.A. No: IN99-01-0992R1, Cr.A. No: IN99-01-0994R1.
Submitted December 10, 2003.
Decided December 17, 2003.
Upon Defendant's Motion for Postconviction Relief: DENIED.
ORDER
Upon review of Movant Luke W. Gatlin's ("Defendant") Motion for Postconviction Relief and the record, it appears to the Court that:
1. Defendant filed a pro se Motion for Postconviction Relief pursuant to Superior Court Criminal Rule 61 ("Rule 61") on September 2, 2003. In support of his motion, Defendant raises the following four grounds for relief: (1) lack of due process; (2) abuse of discretion by the Court; (3) material misrepresentation of fact; and (4) cruel and unusual punishment.
2. During a TASC hearing on February 24, 2003, Defendant was found in violation of his probation and was sentenced to fifteen (15) months at Level V pursuant to criminal action number 98-01-0129-04. Defendant was also sentenced to serve two years at Level V, suspended for Level IV work release suspended after six (6) months for the balance at Level III on criminal action number 99-01-0992-04.
Defendant was discharged from the Treatment Access Center ("TASC") for non-compliance.
3. The Delaware Supreme Court has held that in reviewing motions for postconviction relief, this Court must first determine whether a defendant's claims are procedurally barred prior to considering them on their merits. Pursuant to Rule 61(i), claims for relief must be brought within three years of the conviction becoming final. Any ground for relief that was formerly adjudicated, whether in a proceeding leading to the judgment of conviction, in an appeal, or in a postconviction proceeding, is thereafter barred, unless reconsideration of the movant's claim is warranted in the interest of justice. This Court will not address Rule 61 claims that are conclusory and unsubstantiated. Because no procedural bars are applicable, the Court will address the merits of Defendant's claims.
Bailey v. State, 588 A.2d 1121, 1127 (Del. 1991); Flamer v. State, 585 A.2d 736, 747 (Del. 1990).
DEL. SUPER. CT. CRIM. R. 61(i)(1).
DEL. SUPER. CT. CRIM. R. 61(i)(4).
See Younger v. State, 580 A.2d 552, 555 (Del. 1990); State v. Conlow, Del. Super., Cr.A. No. IN78-09-0985R1, Herlihy, J. (Oct. 5, 1990) at 5; State v. Gallo, Del. Super., Cr.A. No. IN87-03-0589-0594, Gebelein, J. (Sept. 2, 1988) at 10.
4. Defendant's first ground for relief is that he was denied due process. In support of his argument, he indicates that he was not affording legal representation at his TASC status conference/VOP hearing. The federal Constitution does not afford an indigent person with an absolute right to assistance of counsel in a probation violation proceeding. As a result of the significant differences between a criminal trial and violation of probation hearing due process does not require that an indigent defendant be afforded the usual rights associated with a trial in a probation violation proceeding. Specifically, the Delaware Supreme Court adopted the "case-by-case" approach concerning the right to counsel for indigent defendant established by Gagnon v. Scarpelli. The Court recognized, however, that certain cases would remain in which fundamental fairness would require the State to provide counsel for indigent probationers or parolees at its expense. Following the procedural recommendations set forth by the Supreme Court, "counsel should be provided in cases where the probationer raises `a timely and colorable claim (i) that he has not committed the alleged violation of the conditions upon which he is at liberty; or (ii) that, even if the violation is a matter of public record or is uncontested, there are substantial reasons which justified or mitigated the violation and make revocation inappropriate, and that the reasons are complex or otherwise difficult to develop or present'." Based upon the court transcript, Defendant clearly indicated that his work schedule was the reason for his missed appointments at Brandywine Counseling. As a result, Defendant's first ground for relief is without merit.
Jones v. State, 560 A.2d 1056, 1057 (Del. 1989) (citing Gagnon v. Scarpelli, 411 U.S. 778 (1973)).
Id. (citing Gagnon, 411 U.S. at 787-790).
Id. at 1057-1058 (finding no justification for a new inflexible constitutional rule with respect to the requirement of counsel and holding that the decision as to the need for counsel must be made on a case-by-case basis in the exercise of a sound discretion by the state authority charged with responsibility for administering the probation and parole system).
Id. at 1058.
Id. at 1058 (quoting Gagnon v. Scarpelli, 411 U.S. at 790).
5. Defendant asserts that the Court relied upon false hearsay testimony without having any competent evidence to support the statements made by his TASC case manager, Mr. Burks. In support of his claim, Defendant argues that Mr. Burks presented hearsay evidence at his status conference indicating that his probation officer recommended that his probation be revoked and that he be sentenced to Level V for the remainder of his sentence. No written recommendation was offered to support his case manager's statement. Because revocation of a term of probation is an exercise of broad discretionary power, proof sufficient to support a criminal conviction is not required. "A judge in such proceeding need not have evidence that would establish beyond a reasonable doubt guilt of criminal offenses. All that is required is that the evidence and facts be such as to reasonably satisfy the judge that the conduct of the probationer has not been as good as required by the conditions of probation."
Brown v. State, 249 A.2d 269, 272 (Del. 1968).
Id. (quoting Manning v. United States, 161 F.2d 827, 829 (5th Cir. 1947)).
6. Hearsay evidence is permissible at a VOP hearing provided there is competent evidence before the Court to prove the alleged violation. The record reflects that Defendant was, in fact, discharged from Brandywine Counseling for non-compliance. A written discharge report was completed indicating that Defendant failed to appear for his scheduled psychological evaluations on January 15, 2003 and February 19, 2003. The Court also asked Defendant is he had an explanation for his discharge. It is within the Court's discretion to accept a sentencing recommendation from TASC, however, the transcript indicates that Defendant's sentence was not based solely upon the TASC's recommendation. The Court was clearly not satisfied with Defendant's response.
Id.
The Court indicated that Defendant had been given previous chances at the VOP Center, the Plummer Center, and on Home Confinement. In addition, the Court stated that Level IV does not seem to be a deterrent.
9. Defendant's third ground for relief is that his sentence was based upon a material misrepresentation of the facts. Defendant indicates that his TASC worker misrepresented the reason why he missed his psychological evaluations at Brandywine Counseling. In his motion, Defendant claims that his January 15, 2003 appointment was missed because it had been rescheduled for February 19, 2003 because the doctor was unavailable. Defendant claims that his February 19, 2003 appointment was missed because the State of Delaware was under a state of emergency due to a snow storm. Defendant's discharge summary from Brandywine does confirm his assertion that he did have person-to-person contact on January 20, 2003. Defendant also disputes that the signature on the discharge summary is not his signature.
The Court notes that "unavailable" was written on the client signature line which is logical for a discharge for loss of contact.
10. The Court conducted the following inquiry as to Defendant's failure to report to Brandywine Counseling:
THE COURT: What was your reason, Mr. Gatlin, for failing to do Brandywine Counseling?
THE DEFENDANT: Because of my work schedule.
THE COURT: You're sweating. How come your sweating? You're hot?
THE DEFENDANT: Yes, sir.
THE COURT: Take your jacket off. Go ahead, repeat that.
THE DEFENDANT: Due to my work schedule, because I just started a new job at the car wash, and my schedule was from 8:00 to 6:00, and the meetings were from 4:30 to 6:00. And I explained it to my counselor, and she just told me to just make it when I can. I had just started —
THE COURT: Were you shocked when they kicked you out of Brandywine Counseling?
THE DEFENDANT: Yes, because I had just started —
THE COURT: What did you do to get reinstated? Did you call them up? What did you do?
THE DEFENDANT: Yes, I called and talked to my counselor, and she just told me to come in when I can. And after that, I got a mental health evaluation.
THE COURT: Let me stop you there for a second. In my experience with Brandywine Counseling, I've never know them to say just come in whenever you feel like it. Mr. Burks (TASC worker), did you make any communication with Brandywine Counseling?
TASC OFFICER: Yes, she called me. Susan Anderson called me and stated that he had not made the appointments which he was scheduled for, and she was unsuccessfully discharging him due to that.
Based upon the transcript of the hearing, Defendant's TASC worker made no representation as to why he missed his evaluation appointments at Brandywine. Mr. Burks simply indicated that he was unsuccessfully discharged from Brandywine Counseling for failure to make schedule appointments and treatment sessions. Defendant was the only person who made any representation to the Court as to why he missed his appointments. As a result, the Court finds Defendant's third ground for relief to be without merit.
11. Defendant raises cruel and unusual punishment as his last ground for relief. He argues that fifteen months at Level V is excessive punishment for allegedly missing two psychological evaluations by no fault of his own. In addition, Defendant indicates that on June 19, 2002, he was sentenced to six months of Level IV work release followed by nine months at Level Ill. He claims that he completed his term of Level IV in November of 2002. As a result, he contends that the maximum term of incarceration that he could have been sentenced to is nine months. Title 11 Del. C. § 4334 of the Delaware Code states that, if a violation of probation is established and, if imposition of the sentence was suspended, the court may then impose any sentence which might originally have been imposed. The trial judge is authorized to reimpose any suspended prison term when a defendant is found guilty of violating his or her probation. Defendant is arguing that he is entitled to Level V credit for the time he served at Level IV work release. Even though Level IV work release is more restrictive than the lower levels of probation, it does not constitute actual incarceration. Defendant would be entitled any Level V time held waiting for Level IV. Accordingly, a defendant is not entitled to Level V incarceration credit for time actually served at Level IV work release. In the instant case, because a violation of probation was established by competent evidence, Defendant's sentence of fifteen months does not constitute cruel and unusual punishment. A modification is however appropriate due to Level V credit time. (It is entered by separate order this same date.)
DEL. CODE ANN. tit. 11 Del. C. § 4334(c) (2001).
Gamble v. State, 728 A.2d 1171, 1172 (1999) (citing Ingram v. State, Del.Supr., 567 A.2d 868, 869 (1989)).
Johnson v. State, 1997 WL 70827 (Del.Supr.).
For the above stated reasons, Defendant's motion for post-conviction relief is DENIED.