Opinion
I.D. No. 9903009464
Date Submitted: June 30, 2000
Date Decided: July 12, 2000
UPON APPELLEE'S MOTION FOR REARGUMENT.
William L. George, Deputy Attorney General, Department of Justice, Wilmington, Delaware, Attorney for the State.
Donald J. Detweiler, Welch White, P.A., Wilmington, Delaware, Attorney for Appellee.
ORDER
This 12th day of July, 2000, upon consideration of the papers filed by the parties and the record in this case, it appears that:
(1) On June 5, 2000, the Court issued its decision in the State of Delaware's appeal from the Court of Common Pleas in the above-captioned matter. See State v. Welch, Del. Super., ID. No. 9903009464, Goldstein, J. (June 5, 2000) (ORDER). The Court remanded the matter to the Court of Common Pleas with instructions that the State be allowed to re-file the criminal charge at issue against Welch if the State chose to do so. Id. at 12.
(2) Welch has now filed a Motion for Reargument. In her motion, Welch initially asks that the Court address what she terms as a "preliminary matter." Welch then states that the Court's role is to review the Court of Common Pleas' decision, not the decision of the Justice of the Peace Court. Welch goes on to argue that this Court, "cannot consider most of Appellant's arguments in this appeal, since the State attempts to `retry' the case presented to the Court of Common Pleas, and attempt[s] to belatedly introduce for the first time on appeal arguments never presented to the court below."
(3) It is unclear from Welch's Motion for Reargument to which decision of the Justice of the Peace Court she refers. However, the Court can only assume that Welch refers to the charge for speeding she pleaded guilty to in the Justice of the Peace Court, the only decision by that court encompassed by the record in this appeal. Clearly, the Court in no way reviewed the conviction by the Justice of the Peace Court. The Court notes that evidence of that conviction was part of the record below through representation made by the State to that court. Welch did not refute the existence of the conviction nor did she object to the statements made by the State referring to that conviction.
(4) Also, the Court finds that it did not address any issues presented by the State on appeal that were not initially presented to the Court of Common Pleas. In its appeal, the State raised two arguments: (1) that the State had an absolute right to reinstate the charges against Welch which it had previously nolle prossed and (2) that the Court of Common Pleas' finding that there was no basis to reinstate the charge against Welch was erroneous because Welch violated the terms of her probation by pleading guilty to speeding. Id. at 9-10. A review of the record below shows that both of these arguments were made by the State before the Court of Common Pleas when that court considered Welch's Motion to Dismiss the charges against her. Therefore, the Court did not err by addressing arguments that were not raised below.
(5) Welch raises two additional arguments in support of her motion for reargument. First, Welch argues that the Court of Common Pleas never ruled on the issue of whether the State would be permitted to re-file the red light charge based upon the September 14, 1999 guilty plea to speeding so that this Court was in error by faulting the Court of Common Pleas for a ruling it did not make. In support of this argument, Welch alleges that, after the State appealed the Court of Common Pleas' ruling to this Court, the State petitioned that court by letter for an advisory opinion as to whether the court would permit the State to re-file the charges based upon the conviction for speeding. The Court finds that any request for an advisory opinion by the State is not part of the record below present before this Court on appeal and, therefore, the Court cannot consider Welch's representations regarding any such request.
(6) The Court finds that the language of the Court of Common Pleas' written decision shows that the court did indeed consider the issue of whether the State was permitted to re-file the charge against Welch as a result of her guilty plea for speeding. The court stated in that decision:
The State argues there is a basis to void the agreement because defendant violated the terms by pleading guilty to a speeding offense on September 14, 1999. However, when the State took the steps to void the agreement, this event had not taken place and the State not may use a subsequent event to justify its prior action.
The Court concludes by finding "no basis for the State to withdraw from the guilty plea agreement and reinstate the charges."
(7) This Court, in its June 5, 2000 order, determined that, although the Court of Common Pleas was correct in stating that the State could not use Welch's guilty plea to speeding to justify its prior action in reinstating the charge against Welch, the court erred in determining that there was no basis to reinstate the charges. After review of the record in this case, the Court cannot find that this determination is in error, as Welch contends.
(8) Finally, Welch argues that this Court's finding that Mr. Welch's behavior was "deceptive" is not supported by record evidence. According to Welch, the only evidence to support this finding comes from a "highly self-serving `hearsay' letter improperly included in the State's Appendix to its brief to this Court." Initially, the Court finds that the letters to which Welch refers were included in Welch's appendix to its opening brief to this Court, not the State's. Also, those letters were included in Welch's submissions to the Court of Common Pleas, as well and therefore are part of the record below.
(9) Finally, the Court notes that its observation that Mr. Welch's behavior in obtaining the Attorney General's probation was deceptive was part of the Court's determination that his behavior was not sufficient to void the plea agreement, a ruling in Welch's favor. Therefore, the Court finds that, even if the Court erred in its determination regarding Mr. Welch's behavior, the error would have in no way formed a basis to grant Welch's motion.
Therefore, for the reasons set forth above, the Court hereby DENIES Welch's Reargument.
IT IS SO ORDERED.