Opinion
Submitted: October 11, 2000
Decided: November 8, 2000.
Lamont D. Savage
Dear Mr. Savage:
Pending before the Court is the motion of Lamont D. Savage ("defendant") for postconviction relief pursuant to Superior Court Criminal Rule 61 ("Rule 61") . Defendant filed an initial Rule 61 motion on August 22, 2000, and then filed an amended motion on October 11, 2000. I consider herein all grounds contained in the initial motion was well as the amended motion.
FACTS
On December 18, 1997, defendant entered into a guilty plea to the charge of burglary in the third degree. He was sentenced to Level 5 for a period of three (3) years. This period of incarceration was suspended for three (3) months at supervision Level 4, Home Confinement, followed by two (2) years at supervision Level 2.
On October 8, 1999, defendant was found in violation of probation and sentenced as follows:
Effective October 8, 1999, the defendant is placed in the custody of the Department of Correction at Supervision Level 5 for a period of two (2) years, nine (9) months with credit for time served. This sentence is suspended for probation for one (1) year at Level 3, followed by one (1) year at Level 2 consecutive to any probation previously imposed.
Defendant was again cited for violation of probation on the following grounds.
1) Defendant committed criminal offenses during his probation. One, which occurred on December 31, 1999, was being drunk on a highway, to which he pled guilty. The others, which occurred on December 24, 1999, were driving while suspended or revoked, display of a license plate and failing to have insurance.
2) Defendant failed to report to his probation officer weekly.
3) Defendant tested positive for cocaine usage.
4) Defendant violated his curfew on December 24, 1999.
In a letter to defendant dated May 25, 2000, defendant's probation hearing date, which previously had been given at the hearing on his capias return, was memorialized. In that letter, the Court informed defendant to contact an attorney immediately if he wished counsel to represent him at his violation of probation hearing.
Before the violation of probation hearing began on June 2, 2000, the Court informed defendant that he had the right to hire counsel to represent him and that if fundamental fairness required it, the Court would appoint a Public Defender to represent him. The Court then asked defendant if he wished to proceed without an attorney and he said he did. Finally, the Court asked defendant if what was indicated in the violation of probation report was true, and defendant agreed the allegations were true.
Defendant again was found in violation of probation, and was sentenced, on June 2, 2000, as follows:
Effective June 2, 2000, the defendant is placed in the custody of the Department of Correction at supervision Level 5 for a period of 2 years 9 months, including credit for any time previously served.
Upon successful completion of the Key Program, then balance of the Level 5 sentence is suspended for 1 year at Level 4 Residential Substance Abuse Treatment Program. Defendant shall be held at Level 5 until space is available at Level 4 Crest. Upon successful completion of the Level 4 Residential Substance Abuse Treatment Program, then balance of the Level 4 sentence is suspended for 1 year at Level 3 aftercare.
Defendant did not appeal therefrom.
As noted earlier, he has filed the pending Rule 61 motions. In his two motions for postconviction relief, defendant advances the following grounds for relief.
In the first ground, defendant asserts that he did not have counsel when he appeared for his violation of probation hearing and he was not offered counsel.
Defendant mislabels this as an ineffective assistance of counsel claim. Defendant must have been represented by an attorney in order to maintain such a claim.
The second ground is a double jeopardy claim. Defendant maintains that on May 23, 2000, he was sentenced, in Sussex County Court of Common Pleas, to thirty days for violation of probation. The conditions of probation on which he was violated were the same as those on which he was violated in this case.
The third ground is that the sentence was outside of guidelines in that a first conviction provides for a sentence of Level 4 for three months. Defendant maintains as follows:
First Convictions
I have never been violated on level three before I finish [sic] level three and was drop [sic] to level 2 that is were [sic] I recieve [sic] my first violation The fourth ground asserted is labelled "Suppression of
Favorable evidence". In support thereof, defendant asserts:
At time of my 12/31/99 and my 12/24/99 offense [sic] Ken Liberatore was not my probation officer! I reported these offense [sic] to my Probation officer who was at the time was [sic] Scott Willie
DISCUSSION
a) Procedural barsThe Court first examines whether defendant's claims are procedurally barred. Because defendant did not raise any of the issues advanced herein at the time of his hearing and/or on appeal, these grounds are barred pursuant to Rule 61(i)(3) unless defendant shows exceptions to the procedural bars exist. These exceptions are cause from relief from the procedural default and prejudice from violation of his rights, that the Court lacked jurisdiction, or that there was a miscarriage of justice because of a constitutional violation that undermined the fundamental legality, reliability, integrity or fairness of the proceedings leading to the judgment of conviction. Rule 61(i)(3), (5). Defendant has not attempted to establish the existence of any exception to the procedural bar. Consequently, the Rule 61 motion is denied on procedural grounds.
In Rule 61(i), it is provided in pertinent part as follows:
(3) Procedural default. Any ground for relief that was not asserted in the proceedings leading to the judgment of conviction, as required by the rules of this court, is thereafter barred, unless the movant shows
(A) Cause for relief from the procedural default and
(B) Prejudice from violation of the movant's rights.
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(5) Bars inapplicable. The bars to relief in paragraphs (1), (2), and (3) of this subdivision shall not apply to a claim that the court lacked jurisdiction or to a colorable claim that there was a miscarriage of Justice because of a constitutional violation that undermined the fundamental legality, reliability, integrity or fairness of the proceedings leading to the judgment of conviction.
Even if I were to examine the merits of defendant's motion, I would deny it for the reasons set forth below.
b) Merits of claims
1) Deprivation of counsel
The facts belie the assertion that defendant was not given the opportunity to have counsel represent him. In addition, this is not a case where counsel should have been appointed; defendant did not contest the violations and he did not advance any complex or difficult-to-develop reasons which justified or mitigated the violation so as to make revocation inappropriate. Sparks v. State, Del. Supr., No. 39, 2000, Hartnett, J. (May 16, 2000); Dorman v. State, Del. Supr., No. 34, 2000, Holland, J. (April 14, 2000). Consequently, this ground fails.
whether defendant makes his double jeopardy assertion pursuant. to the Delaware Constitution or the United States Constitution, the conclusion of the Court will be the same.
Defendant argues that he was subject to double jeopardy when the same violated conditions of probation resulted in violations of both his Court of Common Pleas sentence and his Superior Court sentence. However, defendant's argument. is fundamentally flawed. The two sentences defendant. received originally arose from two distinct charges. State v. Burley, Del. Super., Cr. A. No. IN90-02-0479R1., Toliver, J. (November 14, 1991) at 3-4. The sentences did not arise from the same charge but rather from the same set of facts and, as explained in State v. Burley, supra at 4:
The same conduct may constitute more than one offense and not violate the double jeopardy clause if it is in violation of more than one statutory provision.
For the foregoing reasons, this ground fails.
3) Illegal sentence
Defendant maintains that the sentence imposed on his violation of probation was outside of guidelines. I presume he references SENTAC Guidelines. He also appears to argue he is entitled to a lesser degree of punishment based upon the number of times he has been violated.
Burglary in the third degree is a Class F felony. 11 Del. C. § 824. The term of incarceration which may have been imposed on this conviction is three years. 11 Del. C. § 4205(b)(6). Defendant originally was sentenced to three years at Level 5, suspended for probation. At the June 2, 2000 hearing, defendant was given an opportunity to comment on the recommended sentence and he stated he would not like to say anything regarding that recommendation. The June 2, 2000 violation of probation sentence reimposed the suspended prison term. Kelly v. State, Del. Supr., No. 460, 1996, Hartnett, J. (May 23, 1997) at 4.A Level 5 sentence beyond the SENTAC guidelines but within the statutorily allowed period is not. legally erroneous. Mayes v. State, Del. Supr., 604 A.2d 839, 845 (1992)
For the foregoing reasons, this ground fails.
4) Suppression of favorable evidence
Defendant argues that he reported his December 24 and 31, 1999, arrests to his current probation officer. Defendant was not violated for failing to report his arrests. Consequently, this argument is meritless.
CONCLUSION
For the foregoing reasons, defendant's motion for postconviction relief is denied.
IT IS SO ORDERED.