Opinion
I.D. No. 9903009464.
Date Submitted: May 12, 2000.
Date Decided: June 5, 2000.
UPON APPELLEE'S MOTION TO DISMISS APPEAL FROM THE COURT OF COMMON PLEAS. DENIED.
UPON APPEAL FROM THE COURT OF COMMON PLEAS. REMANDED.
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 Defendant.
ORDER
This 5th day of June, 2000, upon consideration of the papers filed by the parties and the record m this case, it appears that:
(1) On March 5, 1999, Defendant-below and Appellee, Stephanie Welch, received a citation from the Delaware State Police for Disregarding a Traffic Control Device. Upon Defendant's motion, the charges were transferred to the Court of Common Pleas and the case was scheduled for case review before the Court of Common Pleas on June 7, 1999.
(2) According to the State, on June 4, 1999, Defendant's father, Jeffrey Welch, who also acted as her attorney, approached the Deputy Attorney General assigned to Defendant's case to discuss resolving Defendant's charges through Attorney General's Probation. The Deputy informed Mr. Welch that it was not the State's policy to give Attorney General's Probation in motor vehicle cases.
(3) On June 7, 1999, at the scheduled case review, Mr. Welch approached a different Deputy about resolving Defendant's charges through Attorney General's Probation, without disclosing that another Deputy had previously rejected the option. The second Deputy agreed to place Defendant on Attorney General's Probation.
(4) The Attorney General's probation form was executed by the State and signed by Defendant, her attorney, and the Deputy Attorney General. The State then entered a nolle prosequi to the charge against Defendant. The State specified a six month probationary period for Defendant and included the condition that Defendant complete fifteen hours of community service at the Mary Campbell Center. The agreement specified, "The defendant agrees that any arrest or violation of any federal, state, or local law will constitute a violation of Attorney General's Probation." The agreement set forth that the State, "in its sole discretion," could reinstate the charges against Defendant upon her failure to comply with the terms and conditions of her probation.
(5) On June 9, 1999, the State notified Defendant verbally, by telephone conversation with Mr. Welch, that it would rescind the probation agreement and reinstate the charge against Defendant. On July 14, 1999, the State notified Defendant by letter that it would reinstate the charge against her due to Mr. Welch's conduct in approaching a second deputy to resolve the charge against Defendant without revealing that he had been advised that the State did not grant Attorney General's probation in traffic offenses.
(6) On July 21, 1999, the State notified the Clerk of the Court of Common Pleas to reinstate the charge against Defendant. The case was scheduled for Jury Trial Case Review on October 18, 1999.
(7) On August 21, 1999, Defendant received a citation for speeding. On September 14, 1999, Defendant pleaded guilty in Justice of the Peace Court to the speeding violation.
(8) On October 18, 1999, Defendant filed a motion to dismiss the re-filed information. The Court of Common Pleas heard oral arguments on the motion on November 2, 1999. On January 7, 2000, the court issued its written decision on Defendant's motion to dismiss the information and for attorney's fees. The Court of Common Pleas granted the motion to dismiss the reinstated charge, finding that the State was required by the principles of due process and fundamental fairness to honor its agreement with Defendant. The court denied Defendant's motion for attorney's fees. State v. Welch, Del. CCP, Cr. A. No. 99-03-275 7, Smalls, 1. (Jan. 7, 2000).
(9) The State has appealed the decision of the Court of Common Pleas to this Court pursuant to 10 Del. C. § 9902 (a), arguing that the Court of Common Pleas acted in error by dismissing the charge against Defendant. Defendant filed a Motion to Dismiss the State's appeal. In support of the Motion to Dismiss, Defendant argues that the State's motion was untimely and that the appeal is not appropriate under 10 Del. C. § 9902 (a). The Court will first consider Defendant's Motion to Dismiss.
(10) Initially, the Court finds that the State's appeal was filed in time. The court below entered its decision on January 7, 2000. The State filed its Notice of Appeal on February 7, 2000. Ten Del. C. § 9904 requires that appeals pursuant to 10 Del. C. § 9902 be filed within 30 days of the entry of the order appealed from. However, 30 days from January 7, 2000, or February 6, 2000, fell on a Sunday. Superior Court Civil Rule 6, applicable pursuant to Superior Court Criminal Rule 57, provides that where the last day of such a period of times falls on Saturday or Sunday, the period shall run until the end of the next day that the Prothonotary is open. As a result, the State, pursuant to Rule 6, had until Monday, February 7, 2000 to file its Notice of Appeal. Therefore, the Court finds that the State did not file an untimely appeal.
Specifically, Super. Ct. Civ. R. 6(a) provides, in pertinent part:
In computing any period of time prescribed or allowed by these Rules, by order of court, or by statute, the day of the act, event or default after which the designated period of time begins to run shall not be included. The last day of the period so computed shall be included, unless it is a Saturday or Sunday, or other legal holiday, or other day on which the office of the Prothonotary is closed, in which event the period shall run until the end of the next day on which the office of the Prothonotary is open.
(11) Defendant further argues that the State's appeal should be dismissed because the appeal failed to include the required statement of the nature of the proceedings below and failed to state the substantial question of law or procedure to be decided as dictated by Superior Court Criminal Rule 39(f). Further, Defendant argues, 10 Del. C. § 9902 (a) limits the potential bases for appeal to "the invalidity or construction of the statute upon which the indictment is founded or the lack of jurisdiction of the lower court over the person or subject matter." Defendant contends that the "only explanation" for the State's failure to identify the substantial question of law to be decided is that the State has chosen to single out Defendant for wrongful prosecution of the charge against her.
(12) The Court finds that Defendant has misstated the requirements for an appeal pursuant 10 Del. C. § 9902 (a) or has confused them with the requirements of 10 Del. C. § 9903. Ten Del. C. § 9902(a) provides:
The State shall have an absolute right to appeal to an appellate court a final order of a lower court where the order constitutes a dismissal of an indictment or information or any count thereof, or the granting of any motion vacating any verdict or judgment of conviction where the order of the lower court is based upon the invalidity or construction of the statute upon which the indictment or information is founded or the lack of jurisdiction of the lower court over the person or subject matter.
The Supreme Court examined the construction of this statute and interpreted it by inserting punctuation, as follows:
(1) Appeal As of Right. THE STATE shall have an absolute right to appeal to an appellate court a final order of a lower court where the order constitutes (a) a dismissal of an indictment or information or any count thereof; or (b) the granting of any motion vacating any verdict or judgment of conviction (1) where the order of the lower court is based upon the invalidity or construction of a statute upon which the indictment or information is founded, or (2) where the order is based upon the lack of jurisdiction of the lower court over the person or subject matter.State v. Bailey, Del. Supr., 523 A.2d 535, 538 (1987) (quoting State v. Fischer, Del. Supr., 278 A.2d 324, 326 (1971)).
(13) Thus, it is clear that, where the State is appealing the dismissal of an indictment or information, there is no requirement, as Defendant contends, that "the order of the lower court is based upon the invalidity or construction of a statute upon which the indictment or information is founded." The Court of Common Pleas decision constituted a dismissal of the information against Defendant and thus, pursuant to 10 Del. C. § 9902 (a), the State had an absolute right of appeal.
(14) The Court also finds that the State did not fail to comply with the requirements of Super. Ct. Crim. R. 39(f) by failing to identify a substantial question of law or procedure to be decided. As clarified above, § 9902(a) provides that the State has an absolute right of appeal where a lower court dismisses an indictment or information. In contrast, § 9903 provides that the State may appeal to a higher court in order to "determine a substantial question of law or procedure." The appellate court has absolute discretion to permit such an appeal. Super. Ct. Crim. R. 39(f) provides, in pertinent part:
Specifically, 10 Del. C. § 9903 provides, in pertinent part:
The State may apply to the appellate court to permit an appeal to determine a substantial question of law or procedure, and the appellate court may permit the appeal in its absolute discretion.
The state shall file a notice of appeal under 10 Del. C. § 9902 or an application for appeal under 10 Del. C. § 9903 within 30 days of the entry of the order appealed from. An application for appeal shall contain a statement of the nature of the proceeding below and of the substantial question of law or procedure to be decided.
Defendant argues that, under either 10 Del. C. § 9902 or § 9903, the State is required to provide "a statement of the nature of the proceeding below and of the substantial question of law or procedure to be decided." Because the State failed to include such a statement, Defendant argues that the appeal should be dismissed as inadequate.
(15) After reviewing Rule 39(f) in context of both § 9902 and § 9903, the Court finds that the logical reading of the Rule is that the requirement that the State identify the substantial question of law or procedure is intended to apply to appeals pursuant to § 9903, since the Court has discretion to grant such an appeal and must, therefore, be provided with a basis upon which to make that determination. There is no such discretion when an appeal is made pursuant to § 9902. Therefore, the Court finds that the State's notice of appeal is not defective for failing to include such a statement.
The State may apply to the appellate court to permit an appeal to determine a substantial question of law or procedure, and the appellate court may permit the appeal in its absolute discretion.
(16) Based upon the foregoing, the Court hereby DENIES Defendant's Motion to Dismiss the State's appeal and will address the merits of the State's appeal.
(17) In support of its Motion to Dismiss before the Court of Common Pleas, Defendant argued that the State was not permitted to reinstate the charges against Defendant because the State entered its nolle prosequi without reservation to refile the charges and because Defendant had completed to community service hours specified in the probation agreement. The State responded that Defendant violated the terms of the probation agreement when she pleaded guilty to speeding on September 14, 1999 50 that the State had sole discretion to reinstate the charge against her. The State also argued that the State was not prohibited from refiling its case against Defendant because it had previously dismissed the charge.
Mr. Welch admitted during oral argument that Defendant had completed thirteen of fifteen hours; however, Defendant subsequently completed all fifteen hours.
(18) The Court of Common Pleas determined that the State was required to honor its agreement with Defendant and granted Defendant's Motion to Dismiss. The court explained:
I am of the opinion that the parties' actions in these proceedings should be evaluated under the principles of due process and fundamental fairness. When the agreement was negotiated, both parties were represented by counsel and all of the facts were known to both sides. The charge in question is a simple traffic offense of Disregarding a Red Light. The prosecutor who represented the State did not state his decision was subject to confirmation by his superiors. More importantly, the State does not allege that the facts have changed since the agreement was consummated or there are facts which defendant failed to disclose, the only reason given by the State is that it has unfettered authority to reinstate the charges at its discretion.
The Court noted, "The integrity of the process is put in question if the State[,] by one prosecutor[,] can offer an agreement and[,] for no other reason than another prosecutor disagrees[,] it may be withdrawn." The Court determined that the State could not use Defendant's subsequent guilty plea to justify its action in reinstating the charge against Defendant because that event had not taken place when the State took steps to void the agreement.
(19) In deciding to dismiss the information against Defendant, the Court below noted that it relied upon State v. Freeman, Del. Super., Cr. A. No. 11N85-03-0159, Gebelein, J. (Sept. 4, 1986) (Mem. Op.) Freeman held that, where a defendant had substantially relied upon a plea offer by the State and acted to his substantial detriment by meeting with and secretly tape recording a suspected murderer, the State could not then revoke the plea offer and was bound by its original plea agreement. Id. at 6. Under those circumstances, the Court found, the State was required to follow through with its part of the agreement with the defendant and could not subsequently breach that agreement absent some intervening cause. Id. at 7. Freeman noted that, in general, courts have followed traditional contract law principles in analyzing plea bargain cases, including contract formation, breach, estoppel, and remedies. Id. at 5, n. 4. (Citations omitted.)
(20) In this appeal, the State argues that the refiling of the charge against Defendant did not violate the principles of due process and fundamental fairness. The State contends that Defendant is distinguishable from Freeman because in this case, there was no plea agreement; rather, the State entered a nolle prosequi pursuant to the Attorney General's probation. The State argues that it is permitted to file a nolle prosequi at any time prior to trial without the Court's permission and that the State is not prohibited from refiling the charge should it choose to do so.
(21) The State asserts that this case is also distinguishable because, unlike the defendant Freeman, Defendant had not completed her community service as of June 9, 1999 when the State informed her verbally of its intent to revoke the probation. Therefore, the State argues, Defendant did not rely to her detriment upon the probation offer.
(22) Finally, the State reiterates that Defendant violated the terms of her probation by pleading guilty to speeding. Therefore, the Court of Common Pleas' finding that there was no basis to reinstate the charge against Defendant was erroneous.
(23) The Court agrees that the instant case can be distinguished from Freeman in that the charges against Defendant were disposed of by nolle prosequi rather than by plea agreement. However, the Court must take into consideration the fact that Defendant entered into an Attorney General's probation agreement in order to have the charges dismissed. Also, Defendant admitted the offense with which she was charged in the probation agreement and agreed that, should she violate the terms of the agreement, this information could be used against her at trial. Therefore, the agreement Defendant entered into with the State is not unlike a plea bargain and the Court finds that the Court of Common Pleas did not err by following Freeman's guidance in making its determination.
(24) Although the Court understands the State's desire to withdraw the probation agreement upon learning of Mr. Welch's tactics in obtaining that agreement, the Court also notes that a Deputy Attorney General permitted the agreement and acted, as the Court of Common Pleas noted, in his capacity to represent the State. Nor did the Deputy state that his actions were subject to approval by his superiors. Comparing the probation agreement to a contract, the Court cannot find that Mr. Welch's failure to disclose his prior conversation with another Deputy, although deceptive, rose to such a level so as to constitute fraud in the inducement of the agreement so as to render it void.
(25) As a result, the Court finds that the Court of Common Pleas' determination that the State, having entered into the agreement, was required by fundamental fairness to honor the terms of that agreement was not erroneous. However, the Court finds that the Court of Common Pleas' determination there was no basis for the State to revoke the probation agreement and reinstate the charge against Defendant to be in error.
(26) The Court notes that, just as the State was required to uphold the terms of the agreement it entered into, Defendant was also bound to comply with the terms of that agreement. Defendant received a citation for speeding on August 21, 1999 and pleaded guilty to that offense on September 14, 1999, during her probationary period. The parties do not dispute that this violation constitutes a violation of the terms of the probation agreement, which clearly states that any arrest or violation of federal, state, or local law constitutes a violation of the probation. The agreement also provides that the State could reinstate the charge against Defendant upon her failure to comply with all the terms and conditions of her probation.
(27) The Court agrees with the Court of Common Pleas that the State could not rely on Defendant's September 14, 1999 guilty plea in order to justify reinstating the charge against Defendant prior to that date. However, by the terms of the probation agreement, the State, as of September 14, 1999, had the sole discretion to reinstate the charge against Defendant. Therefore, the Court of Common Pleas acted in error by failing to allow the State to reinstate the charge against Defendant as of that date.
For the reasons set forth above, the Court hereby REMANDS the instant action to the Court of Common Pleas with directions that the court permit the State to refile the charge of Disregarding a Traffic Control Device against Defendant should the State choose to do so.
IT IS SO ORDERED.