Opinion
Cr. A. No. VN91-04-0810, VN91-04-0809, VN90-12-0324, I.D. No. 30103605DI, 91004224DI, 30009676DI.
January 7, 2000.
ORDER
This the 7th day of January, 2000, upon consideration of the Defendant's Motion for Postconviction Relief pursuant to Superior Court Criminal Rule 61, and the record in this case, it appears that:
1. On March 3, 1992, in Cr. A. No. IN90120324 the Defendant plead guilty to Assault Second Degree. The Defendant was sentenced on May 8, 1992 to 4 years at Level 5; suspended after 1 year, for 6 months at Level 4 Halfway House and 6 months at Level 4 Home Confinement. The balance of this sentence was to be served at Level 3 and Level 2. The Defendant was found to have violated the probation so imposed on September 9, 1994, April 11, 1995 and August 27, 1996.
2. The sentence imposed on August 27, 1996 was modified as of July 1, 1997. Effective that date, the balance of those sentences were suspended for Level 4 supervision (Crest Inpatient Drug/Alcohol Treatment Program). The Defendant was to be held at Level 5 pending the availability of space at Level 4. Upon successful completion of the CREST Program, the remainder of his sentences were to be suspended for supervision at Level 3.
3. The Defendant was approved for Level 2 supervision on August 31, 1998. However, on August 26, 1999, the Defendant was again found to have violated the probation imposed in Cr.A. No. VN9104080902, VN9104081002, and VN9012032404.
4. The Defendant now moves the court for postconviction relief pursuant to Superior Court Criminal Rule 61 based on three grounds: 1) There was a mistake in the original sentence imposed in Cr. A. No. IN90120324 which was re-imposed in 1996; 2) The Court's calculation is incorrect and the maximum full term expiration date is 1/17/99 instead of 1/17/00; and 3) The sentence imposed on August 26, 1999 is illegal.
5. At the outset, this Court must first determine whether any of the procedural bars in Super. Ct. Crim. R. 61(I) prevent consideration of the merits of the contentions being raised by the Defendant. Younger v. State, Del. Supr., 580 A.2d 552, 554 (1990). However, "if it plainly appears from the motion for postconviction relief and the record of the prior proceedings in the case that the movant is not entitled to relief, the judge may enter an order for its summary dismissal and cause the movant to be notified." Super. Ct. Crim. R. 61(d)(4). As the following discussion demonstrates, the Defendant's petition falls within this category of post conviction relief claims.
6. In terms of grounds one and three of the motion, the Defendant specifically contends that the Defendant's court docket shows a mistake in the sentence imposed in Cr. A. No. VN90120324 on May 8, 1992. That mistake, he goes on to argue, has been carried over and reimposed in subsequent violations, which culminated in "the illegal sentence imposed on August 26, 1999. However, the sentencing order entered on May 8, 1992 is identical to the sentence listed on the docket for that day. In addition, the petition fails to specifically explain exactly how or why there is a mistake in the order. According to the record, the sentence imposed on August 26, 1999 was a result of the Defendant's violation of probation. Without more, the Court must conclude that the sentence imposed on August 26, 1999 contained no error.
7. Ground two of Defendants motion states that the Court's calculation of his sentence was improper because Defendant was not credited for time served in February of 1999 (15 days) and from July 1, 1996 to October 29, 1996 while waiting for placement in the CREST program. Defendant, however, fails to explain what is wrong with his "good-time" or describe how the good time dates were incorrect. "Good-time" or a reduction the length of a sentence, may be earned for good behavior while in the custody of the Department of Corrections when the person has not been guilty of any violation of discipline, rules of the Department or any criminal activity and has labored with diligence toward rehabilitation according to certain conditions. 11 Del. C. § 4381. Any "good-time" earned can also be forfeited for conviction of any crime during the sentence, violation of Department of Correction rules, or for physically assaulting any correction officer or employee of the Department. 11 Del. C. § 4382.
8. It is not otherwise apparent from the motion, whether the time he claims was wrongfully taken from him falls under any of the required conditions for the earning of "good time" as specified by statute. It is also not clear whether the Defendant was entitled to the credit claimed and that it was not given to him. Without more, the Court must conclude that the Defendant's grounds are merely conclusory statements. Such claims are not generally addressed and the Court sees no reason to vary from that procedure here. Zimmerman v. State, Del. Super., Cr. A. No. JIN86-10-0050, Goldstein, J. (September 17, 1991).
Based on the foregoing, the Defendants motion must be and is hereby denied.
IT IS SO ORDERED.
TOLIVER, JUDGE.