Opinion
No. 304, 2001.
Submitted: March 14, 2002.
Decided: May 9, 2002.
Court Below — Superior Court of the State of Delaware, in and for Kent County Cr.A. Nos. VK00-01-0212, VK91-03-0109, VK99-03-0001.
Before VEASEY, Chief Justice, HOLLAND and BERGER, Justices
ORDER
This 9th day of May, 2002, it appears to the Court that:
(1) The defendant-appellant, Harold J. Stevenson, filed a motion for reargument of this Court's February 11, 2002 Order denying his direct appeal. We have reviewed carefully the submissions of the parties and the record and have concluded that the motion for reargument should be GRANTED and this matter REMANDED to the Superior Court for further proceedings in accordance herewith.
SUPR. CT. R. 26(c).
(2) On June 1, 2001, the Superior Court, among other things, sentenced Stevenson to 2 years incarceration at Level V, to be suspended after 6 months, for a violation of probation ("VOP") in connection with his 1991 Robbery conviction. Stevenson was represented by counsel at the time of the VOP hearing. No objection was made to the finding of a VOP or to the sentence imposed. On direct appeal, Stevenson's counsel filed a brief and a motion to withdraw pursuant to Rule 26(c), asserting that there were no arguably appealable issues. Stevenson submitted points for this Court to consider, including a claim that, on June 1, 2001, the Superior Court improperly sentenced him for the VOP. In the absence of record support for Stevenson's claim, this Court denied his direct appeal of the Superior Court's sentence for the probation violation.
This was the same attorney who had represented Stevenson at the time of the VOP hearing.
Stevenson claimed that there was only 1 year, rather than 2 years, of Level V time remaining on his 1991 sentence.
Stevenson v. State, Del. Supr., No. 304, 2001, Berger, J. (Feb. 11, 2002).
(3) Following this Court's denial of Stevenson's direct appeal, Stevenson's former counsel filed a motion for reargument asserting that Stevenson's 1991 sentence for Robbery, including the probationary period, may have been satisfied prior to June 1, 2001, the date the Superior Court sentenced Stevenson for the VOP. Stevenson's former counsel attached to the motion a copy of an October 5, 2001 letter from the Department of Correction declining to release any information concerning the status of the probationary period of Stevenson's sentence. In its response, the State argued that the motion for reargument should be denied and Stevenson should be required to raise any issue regarding his sentence in a motion to correct sentence.
The sentence was 5 years incarceration at Level V, to be suspended after 3 years for decreasing levels of probation. In 1993, the Superior Court modified the terms of probation.
SUPER. CT. CRIM. R. 35(a).
(4) We conclude, in the interest of justice, that this matter should be remanded to the Superior Court for a determination of whether any portion of Stevenson's 1991 sentence for Robbery remained to be served and, therefore, whether, on June 1, 2001, the Superior Court had jurisdiction to sentence Stevenson for a VOP on that conviction. The Attorney General's Office should obtain the necessary information from the Department of Correction and provide it to the court and Stevenson, thereby creating a record basis for the trial court's decision and for review by this Court.
NOW, THEREFORE, IT IS ORDERED that this matter is REMANDED to the Superior Court for further proceedings in accordance with this Order. The Superior Court's report shall be submitted within 30 days of the date of the Order. Jurisdiction is retained.