Opinion
IK98-02-0257-R1, IK98-02-0258-R1, ID No. 9707019006
July 25, 2000
Upon Defendant's Motion For Postconviction Relief Pursuant to Superior Court Criminal Rule 61.
Dennis Kelleher, Esq., Deputy Attorney General, Dover, Delaware, for the State of Delaware.
James E. Ross, Jr., pro se.
COMMISSIONER'S REPORT AND RECOMMENDATIONS
On the morning of his trial, June 29, 1998, Defendant James E. Ross, Jr. ("Ross") pled guilty to one count of Assault in the Second Degree, 11 Del. C. § 612, as a lesser included offense of Assault in the First Degree, and to one count of Conspiracy in the Second Degree 11 Del. C. § 512. Pursuant to a Rule 11(e)(1)(c) plea agreement the Court then sentenced Ross to three years at Level V incarceration, suspended after serving twelve months for varying levels of probation on the Assault charge and to two years incarceration suspended for probation on the Conspiracy charge. The conditions of Ross' probation was that he pay his fines, costs and restitution during probation and that he not possess or consume any illegal substances.
Ross was given credit for time served pending the adjudication. Ross was originally arrested on these charges in July 1997 and had been held in lieu of bond since that time.
In March 1999, Ross' probation officer requested a capias due to allegations that Ross had failed to report to probation, had changed his residence without notifying probation and had tested positive on several occasions for illegal drug use.
A violation of probation hearing was held on April 30, 1999. After hearing the testimony of Ross' probation officer and Ross concerning the allegations, the Court found Ross to be in violation of his probation. Ross was then sentenced to three years at Level V, suspended after serving two years with credit for 30 days served, to be followed by probation on the Assault charge. Ross was also sentenced to two years at Level V suspended for probation on the Conspiracy charge. While at Level V, Ross was to complete the "Key" drug program.
Ross 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 Ross raises the following three grounds for relief:
Ground one: double jeopardy. Illegal detention give (sic) two sentence (sic) for the same affence (sic). Give a sentence under wrong indictment numbers. Sentence under Burglary when I plea (sic) to assualt (sic). Not give (sic) paper work on violation and the proper paper work reason for violation when arrested by Police. Denied me paper work.
Ground two: Infective (sic) counslor (sic). My lawyer was not at my VOP hearing. Case was not properly under indictment number cause confession in my VOP hear (sic) waer (sic) Judge gave me a sentence under wrong charge went out side of plea agreement guidelines.
Ground three: Unfulfilled (sic) Plea Agreement. The voilation (sic) of probation was more Level 5 time then the origenal (sic) Plea Agreement. Were (sic) on the assault I was release 6-26-99 the date I was given time serve. I never did the 12 mos (sic) sentence on the Burglary Indictment. I was give (sic) this sentance (sic) under the Assault.
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. Ross 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. Ross in his second 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 Ross denied he had violated his probation, the Court found the testimony of Ross' probation officer more credible and found Ross guilty of violating his probation. This was not a complex issue nor were Ross' allegations of innocence colorable. For these reasons, Ross 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 Ross' first and third 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." Ross has made no attempt to allege any such violations and as such these claims should be procedurally barred.
Super. Ct. Crim. R. 61(i)(5).
I therefore recommend the Court deny Ross' motion as procedurally barred by Rule 61(i)(3). This however, does not end my recommendations. In reviewing the file, I discovered what appears to be a mistake in Ross' sentence following his Violation of Probation hearing as to the Assault charge. Originally, Ross was sentenced to three years Level V, suspended after serving twelve months for two years probation. Ross was given credit for time served which was close to twelve months at the time of his plea. Therefore, when he was eventually released from incarceration, he would only have had approximately two years remaining on the assault charge. However, his sentence on the violation was for three years Level V, suspended after serving two years with 30 days credit for time served. The 30 days refers to the time Ross was incarcerated pending the violation of probation hearing. It is my opinion that Ross should have only be sentenced to the remaining two years of his Level V time, not the original three or in the alternative Ross should have been given credit for all the time he had served on the charge. Therefore, I recommend that in addition to denying Ross' motion as procedurally barred, that the Court issue a modified sentence as to the violation of probation for the assault charge to read as follows:
Consecutive to the sentence now serving, the Defendant is placed in the custody of the Department of Corrections at supervision Level V for a period of three years with credit for all time served on this charge from his original arrest including time served awaiting the violation hearing, followed by one year at supervision Level III. While at supervision Level V, the defendant is to enter and complete the Key Program.
This recommendation is supported by the violation of probation report which recommends that Ross be sentenced to two years at Level V.