Opinion
Cr.A. No. VK91-03-0109 (ID. No. 91K009771DI)
June 10, 2002
REPORT OF FINDINGS ON REMAND
This 10thth day of June 2002, upon remand from the Supreme Court, it appears that:
1. On June 1, 2001, this Court adjudged that the defendant, Harold J. Stevenson, had violated probation in VK91-03-0109 and sentenced him to two years at supervision Level V, suspended after six months ("the 2001 proceeding"). The 2001 proceeding was based upon a violation of probation report submitted in August 2000 ("the August 2000 report"). It indicated that the violations occurred while the defendant was serving a one year probationary term as part of a sentence for a 1991 Robbery conviction ("the 1991 sentence"). The defendant appealed. On appeal he argued that he had already served his 1991 sentence in full, or may have, prior to the violations cited in the August 2000 report. The case was remanded from the Supreme Court for this Court to determine whether any portion of the 1991 sentence remained to be served when the defendant was sentenced in 2001.
The gap of almost a year between the submission of the report and the hearing was due to the fact that the defendant absconded and was not caught until shortly before the June, 2001 hearing.
2. A hearing was held in this Court on June 6, 2002. At that time the Court determined that the 1991 Robbery sentence expired well before the time frame covered in the August 2000 report. In fact, it expired in 1997. Since the defendant had no other unserved Level V sentences on June 6, he was ordered released that day, without opposition from the State.
3. The facts relevant to this proceeding start in 1979. In that year the defendant was sentenced to a total of twenty-one years at Level V for two Robberies in the First Degree, an Attempted Robbery in the First Degree, and a Burglary in the Third Degree ("the 1979 sentences"). He was released from these sentences on parole on November 25, 1990, having served approximately twelve years. After his release, he committed the Robbery which is the subject of this proceeding. On September 6, 1991, he was sentenced on this offense to five years at Level V, suspended after three years, followed by one year at Level IV, followed by one year at Level III. In addition, his parole was revoked and he was ordered to serve the remainder of the 1979 sentences.
4. On October 14, 1993, the 1991 sentence was modified to reduce the Level IV portion to six months instead of one year. On March 29, 1996, the Court again modified the 1991 sentence, this time to eliminate the six months Level IV portion and replace it with six months of Level III, which, when combined with the one year of Level III to follow, created a term of eighteen months at Level III ("the March 29, 1996 order"). The effective date of the defendant's Level III was expressly stated to be May 17, 1996. Shortly thereafter, on May 31, 1996 the defendant was released from Level V. At that point he had served the Level V portion of the 1991 sentence in full but was still on parole for the 1979 sentences. In July 1997 the defendant's parole was revoked. After serving some time at Level V, he was released on parole again. In March 2000 his parole was again revoked and he was incarcerated until April 5, 2000. That date marked the completion of his 1979 sentences. He was then released to the community.
5. The effect of the March 29, 1996 order was to commence the Level III portion of the 1991 sentence on May 17, 1996. The order ran concurrent with any other sentence being served and therefore expired in late 1997.
It has become a standard practice to include language in sentencing orders which provides that a sentence is consecutive to any other sentence being served. In the absence of such language, probationary terms of community supervision are concurrent with any other sentence. Nothing contained in the March 29, 1996 order deferred the probation in this case or made it consecutive to any other sentence being served. When the defendant was incarcerated in July 1997, no new order was entered deferring or extending the probation in this case. In fact, it appears that the Level III portion of the sentence was never initiated as an active probation in 1996-1997.
6. The August 2000 report indicated that the probationary term began in April 2000. It appears that the August 2000 report was based upon an erroneous belief that the Level III portion of the 1991 sentence was effective April 2000 when the defendant completed his 1979 sentences and was released. As mentioned, however, it expired in 1997.
7. At the 2001 proceeding the defendant was also sentenced to eleven months at Level V on a separate criminal action number, VK00-01-0212. This sentence was completed on March 31, 2002. At that point the defendant had no other Level V sentence apart from the six-month sentence imposed in VK91-03-0100. At the June 6 hearing, the sentence in VK91-03-0100 was vacated. Between March 31, 2002 and June 6, 2002, therefore, the defendant served 68 days without any valid Level V sentence. The Court has credited these 68 days to another sentence for which the defendant is currently at Level III, IK01-06-0628.
8. The record of this remand proceeding consists of two memoranda dated June 6, 2002 which were prepared by the Court's Investigative Services Office and set forth the history of the defendant's sentences in detail, the Court's order dated June 6 vacating the sentence in VK91-03-0109, the Court's order dated June 6 crediting the defendant with 68 days in IK01-06-0628, a copy of the Court's order of March 29, 1996, and the record of the June 6 hearing.
9. WHEREFORE, the Prothonotary shall file this report on remand with the Clerk of the Supreme Court today.
IT IS SO ORDERED.