Opinion
Cr.A. No. VK94-03-0355
Decided: October 25, 2000
This 25th day of October 2000, upon remand of this matter from the Supreme Court of the State of Delaware, it appears that:
1. The defendant, Thomas W. Whitten, filed an appeal to the Supreme Court from an order of this Court denying his motion to correct sentence. In an Order dated September 22, 2000, the Supreme Court determined that the record was inadequate and remanded the matter for further findings of fact in accordance with that Order.
2. Upon remand, the Office of Investigative Services of this Court conducted a through review of the defendant's sentencing and credit time history and in the course thereof examined the institutional records at the Multi-Purpose Criminal Justice Facility (Gander Hill), presentence records of the Superior Court in and for Kent County, Prothonotary's records of the Superior Court in and for Kent County, the defendant's criminal history via DELJIS; criminal dockets of the Superior Court in and for New Castle County, criminal dockets of the Municipal Court/New Castle County Court of Common Pleas, and the defendant's probation/parole records. In addition, a hearing was held on October 25, 2000 at which the defendant and the State were afforded an opportunity to be heard on this matter. Based upon the Court's consideration of all the information made available to it, the facts appear to be as follows.
The Presentence office has recently been renamed as Investigative Services.
3. The sentence involved in this proceeding arises out of guilty plea to felony theft entered by the defendant on August 15, 1994. At that time the defendant was sentenced to one year at Level V, suspended for one year at Level II. The defendant had been arrested on the charge on March 3, 1994 and released on an unsecured bond. The defendant failed to appear for his arraignment on April 14, 1994 and a capias was issued. On May 20, 1994, the defendant was arrested for DUI in New Castle County. He was convicted of the DUI and sentenced to sixty days at Level V. This sentence was served from May 20, 1994 until July 8, 1994. The capias issued on this case was returned on May 23, 1994 after the defendant's May 20 arrest, but the four days from May 20 to May 23 were applied to the DUI sentence. Therefore, at that point the defendant still had no credit time applicable to this case.
4. When the DUI sentence expired on July 8, 1994, the defendant began serving a six month sentence at Level V which was imposed for a conviction for burglary in the Superior Court in New Castle County. This sentence expired on December 21, 1994 and the defendant was released from Level V custody on that date. Thus, the time spent at Level V from May 20, 1994 to December 21, 1994 was all on account of the DUI and burglary sentences from New Castle County.
5. On November 29, 1994, a capias was issued on this case for an alleged violation of probation. However, the capias and the violation report were shortly thereafter withdrawn and the defendant was not taken into custody.
6. On August 10, 1995 another capias was issued on this case again alleging a violation of probation. On August 9, 1996, the defendant was taken into custody on other charges as well as the capias. He was unable to post bond on the new charges. The capias was returned and a violation of probation hearing was held on August 15, 1996 (a year and five days after the capias was issued). The defendant was adjudged to have violated his probation and was resentenced to one year at Level V, suspended for six months at Level IV-Home Confinement, followed by community supervision. He continued to be held on the other charges until September 5, 1996 when he was able to post bond. The time from August 9, 1996 to September 5, 1996 was credited to the new charges. Therefore, the defendant still had not served any Level V time attributable to this case after the August 15, 1996 violation of probation hearing was concluded.
7. On September 12, 1996 the defendant was taken into custody for failure to appear for proceedings in the Court of Common Pleas in New Castle County for another DUI charge. On October 9, 1996 the defendant was convicted of this charge and sentenced to 120 days at Level V effective September 12, 1996. On October 25, 1996 a violation of probation hearing was conducted in this case and the defendant was adjudged to have violated his probation. However, his August 15, 1996 order was continued in effect without any change. On January 1, 1997, the defendant completed his sentence for the New Castle County DUI and was released to resume the Level IV-Home Confinement portion of the August 15, 1996 sentence in this case.
That is why there is no sentencing order for the October 25, 1996 violation hearing. Apparently at that time if a defendant was found to have violated his probation but his sentence was not altered, a new sentencing order was not issued.
8. On February 14, 1997 another capias was issued by this Court charging the defendant with violation of probation. The defendant was taken into custody on March 22, 1997. A violation of probation hearing was held on April 11, 1997. The defendant was adjudged to have violated his probation and sentenced to one year at Level V, suspended after 30 days, followed by six months at Level IV-Halfway House, followed by six months at Level III. After the thirty days of Level V time expired, the defendant continued to be held at Level V pending space available at Level IV-Halfway House. He was transferred to the Halfway House on May 22, 1997. The defendant is, therefore, entitled to sixty-five days of Level V time from March 22, 1997 until May 22, 1997, plus good time for the thirty-five days he was being held at Level V pending space available at Level IV.
The records of the Department of Correction reflect that the defendant's thirty days of sentenced Level V time were served from March 22 to April 17, 1997. The records commence the defendant's Level IV time on April 18 even though he continued to be held at Level V pending space available at Level IV. Thus, the Department of Correction records do not give him Level V credit time for the period from April 18, 1997 to May 22, 1997. In accordance with Gamble v. State, Del. Supr., 728 A.2d 1171 (1999) this order does give the defendant Level V credit for that time. It is noted that the defendant may also be entitled to some good time credit for the thirty-five days served from April 18 to May 22, 1997.
9. On June 25, 1997 the defendant was charged with escape from the Level IV facility. On July 1, 1997 this Court issued another capias on this case in connection with the escape/failure to return to the Level IV facility. He was taken into custody on this capias on or about July 19, 1999. On August 13, 1999 a violation of probation hearing was held, and the defendant was adjudged to have violated his probation and sentenced to eleven months at Level V, suspended after 30 days, followed by Level III. The defendant is entitled to the thirty days of Level V time served on this occasion, giving him a total Level V time credit of ninety-five days to that point.
The eleven months probably reflects the thirty days of actual Level V time sentenced on the previous violation of probation order but does not take into account the additional thirty-two days served at Level V while awaiting space at Level IV.
10. On September 30, 1999 another capias was issued alleging that the defendant had violated his probation. He was taken into custody on November 13, 1999. He remained in custody pending his December 17, 1999 violation of probation hearing. On that occasion he was adjudged to have violated his probation and sentenced to 10 months at Supervision Level V.
The ten months no doubt reflects the thirty days of unsuspended Level V time sentenced on April 11, 1997 and the thirty days sentenced on August 13, 1999. It again, however, fails to take into account the thirty-two days of time which the defendant spent at Level V waiting space available at Level IV from April 18 to May 22, 1997.
11. At the hearing on October 25, 2000, the Court explained to the defendant that the Court calculated ninety-five days of Level V time to which he was entitled, the two thirty day unsuspended Level V sentences and the thirty-five days he was held at V waiting to go to IV in 1997. The only additional time the defendant claimed was about thirty days in connection with the August 15, 1996 violation of probation hearing and fourteen days from the date of his original arrest on March 3, 1994 until he claims he posted bond. As set forth above, the time at Level V in August and September of 1996 was attributable to another case. A further review of the records pertaining to his March 3, 1994 arrest indicate that he was given unsecured bond on this case but held until March 7, 1994 on a contempt of court issue on another case, and released to the street on March 7. It does not appear, therefore, that he is entitled to any credit time on this sentence for that period of time.
12. To the extent that the defendant claims that he only had twenty-four days of Level V time left unserved on the original one year sentence at the time of his December 17, 1999 hearing, his claim is clearly not correct. However, it does appear that the defendant was entitled to ninety-five days of Level V time, not just the sixty days which the Court by implication took into account in sentencing the defendant to ten months. Therefore, the defendant's sentence should have been not more than eight months, twenty-five days at Level V instead often months. Since he was taken into custody on November 14, 1999, his sentence should have expired sometime in approximately August 2000, less good time.
It is again noted that the defendant may also be entitled to some good time credit for the thirty-five days served from April 18 to May 22, 1997.
12. It is noted that on January 4, 2000 the Superior Court in New Castle County sentenced the defendant to two years at Supervision Level V, suspended after one hundred twenty days, followed by community supervision. This sentence was on a guilty plea to escape after conviction. On March 21, 2000, on another case, the Superior Court in New Castle County sentenced the defendant to thirty months at Supervision Level V, suspended after ninety days, followed by community supervision. Therefore, the defendant continues to be lawfully held at Level V.
13. Now, therefore, this order shall be filed with the Clerk of the Supreme Court forthwith.
IT IS SO ORDERED.