Opinion
Crim. I.D. No. 9412010717.
Submitted: March 27, 2002.
Decided: April 30, 2002.
ON DEFENDANT'S MOTION FOR RECONSIDERATION OF COMMISSIONER'S RESTITUTION ORDER PURSUANT TO SUPERIOR COURT CRIMINAL RULE 62.
DENIED.
Paul R. Wallace, Esq., Deputy Attorney General, Wilmington, Delaware.
Jerry Kendall, Defendant, Pro Se, Georgetown, Delaware.
Now, this 30th Day of April, 2002, upon consideration of the Defendant's Motion for Reconsideration of the Commissioner's Order regarding Restitution for the above-captioned matter, it is the order of the court that:
(1) Defendant's Motion was timely filed pursuant to Superior Court Civil Rule 62 on March 22, 2002;
(2) Defendant seeks reconsideration of the Commissioner's Order because the Commissioner permitted the Defendant to proceed pro se, despite the Defendant's objections. The Court had already ruled upon the Defendant's motions to have representation, deeming it unnecessary at the restitution hearing stage that counsel be appointed. Defendant relies on Superior Court Criminal Rule 44(a) which reads:
"Every defendant who is unable to obtain counsel shall be entitled to have counsel assigned, pursuant to 11 Del. C. § 5103, to represent that defendant at every stage of the proceedings from initial appearance before the committing magistrate or the court through appeal when required by law or deemed appropriate by the court unless, after the court has advised the defendant of the dangers and disadvantages of acting pro se and has found the defendant competent to do so, the defendant waives such appointment."
(3) The Defendant interprets this passage incorrectly, assuming he would have the right to counsel at any stage in the life of his case. Superior Court Criminal Rule 44 requires only that counsel be provided to indigent defendants on trial for crimes punishable by death or by some sentence which will deprive the defendant of a liberty interest. The Defendant passes over the phrase in the Rule which reads "when required by law or deemed appropriate by the Court." His motion for appointment of counsel has been decided previously by this Court and will not merit reconsideration of the Commissioner's Order based on this renewed complaint.
(4) Defendant argues that the hearing was "tainted by violation of the defendant's constitutional rights to due process and equal protection of the law." While Defendant does not clearly explain these allegations, the Court will attempt to read Defendant's motion to allege these Constitutional violations in relation to allowing the hearing to proceed while the Defendant's motions are being considered by the Federal District Court and while a writ of mandamus is before the Supreme Court. The Defendant has successfully avoided payment of restitution to his victims for several years and the Commissioner's decision to move forward, particularly in light of the Court's rulings regarding appointment of counsel, is appropriate. Defendant's motions in the Federal Court center around his assertion that one victim is guilty of extortion and blackmail. As the Commissioner explained to Defendant at the Restitution Hearing, whether he believes there has been blackmail or extortion or even whether his former attorneys believe there has been blackmail or extortion is irrelevant. The Defendant has been convicted by a jury trial. The Defendant owes restitution based on those convictions. To date, the State has not filed any claims against the victim, Al-Chokachy, and stated clearly at the Restitution Hearing that it would never move forward on such a claim by Defendant. Additionally, the resolution of the Defendant's motion in Federal Court, irrespective of the dubious merits of that claim, have no bearing on whether the Defendant is liable under State law to provide restitution to persons he has defrauded out of their money and their homes.
(5) The Defendant argues that the State has not met its burden by a preponderance of the evidence. This assertion is without merit. The Commissioner correctly found that the State met its burden as to most of the victims. In those cases where additional documentation is necessary to supplement the information provided by the Victim Loss Statements, the Commissioner provided a deadline by which the State may produce additional receipts or documents. The Defendant apparently did not grasp the issue which the Restitution Hearing has confirmed. The Victims' Loss Statements, an acceptable document for this Court to review with regards to restitution, delineated clearly those losses which the victims claimed were related to the defendant's criminal act upon the victims. The Defendant's argument was not with the losses, but with the documentation of the losses. The Commissioner correctly reviewed the evidence provided by both parties and assessed that the losses were directly related to the Defendant's criminal convictions. He did not, however, accept the values which the victims claimed without appropriate documentation. This Court sees no error in the Restitution Order or in allowing further documentation.
(6) Defendant seeks further hearings requiring testimony from his previous two attorneys as well as sworn affidavits from all the victims. Whether the Defendant thinks he represented himself well enough or not, the Hearing took place with the Court appropriately requiring him to proceed pro se and the Defendant had the opportunity at that time to call his own witnesses and present his case with whatever evidence he deemed appropriate. He merely argued that the amounts in question were not correct and that one of the victims had been criminally responsible for his own criminal activity. This is not enough to lend merit to the Defendant's claims of deprivation of his Constitutional rights.
(7) The Commissioner's Restitution Order Pursuant to Superior Court Criminal Rule 62 is hereby affirmed.
IT IS SO ORDERED.