Summary
In Hester, the defendant's positive drug test report in the record and the case manager's testimony that she oversaw the administration of the test were sufficient competent evidence to revoke probation.
Summary of this case from Collins v. StateOpinion
No. 412, 2001
Decided: February 13, 2002
Court Below-Superior Court of the State of Delaware, in and for Sussex County Cr.A. Nos. 00-05-0150, 0151, 0154, 0155, 0158
Affirmed.
Unpublished opinion is below.
DONALD R. HESTER, Defendant Below-Appellant, v. STATE OF DELAWARE, Plaintiff Below-Appellee. No. 412, 2001 In the Supreme Court of the State of Delaware. Submitted: December 28, 2001 Decided: February 13, 2002
Before HOLLAND, BERGER and STEELE, Justices
Carolyn Berger, Justice:
ORDER
This 13th day of February 2002, upon consideration of the appellant's opening brief and the appellee's motion to affirm pursuant to Supreme Court Rule 25(a), it appears to the Court that:
(1) The defendant-appellant, Donald R. Hester, claims error in the Superior Court's finding of a violation of probation ("VOP"). The plaintiff-appellee State of Delaware has moved to affirm the judgment of the Superior Court on the ground that it is manifest on the face of Hester's opening brief that the appeal is without merit. We agree and AFFIRM.
SUPR. CT. R. 25(a).
(2) In this appeal, Hester claims that the Superior Court: a) abused its discretion by revoking his probation solely on the basis of unreliable hearsay evidence consisting of a urinalysis report; and b) violated his due process rights by denying him the opportunity, first, to cross-examine a toxicology expert about the report and, second, to have his case heard by a neutral fact finder.
(3) In August 2000, Hester pleaded guilty to Possession with Intent to Deliver Cocaine and other related charges. On the possession conviction, his sentence was deferred for boot camp and, upon successful completion of boot camp, he was to be placed at Level III probation for 2 years and 6 months. In April 2001, Hester's possession sentence was modified to provide for 6 months Level IV house arrest following successful completion of boot camp, to be followed by 2 years at Level III probation. In June 2001, Hester's probation officer filed a report with the Superior Court noting that Hester had been drinking alcohol in violation of the conditions of his probation. Hester subsequently waived his right to a VOP hearing and was placed in the Sussex County VOP Center on June 18, 2001 for 2 days.
SUPER. CT. CRIM. R. 11(e) (1) (C).
DEL. CODE ANN. tit. 11, § 6712 (1995).
(4) On June 27, 2001, Hester submitted to a urinalysis, as was required under the conditions of his probation. According to the July 5, 2001 report submitted to the Superior Court by Hester's probation officer, the sample tested positive for cocaine. Following a VOP hearing on August 6, 2001, at which Hester was represented by counsel, the Superior Court found that Hester had violated his probation. His probation on the possession conviction was revoked (00-05-0154) and he was sentenced to 8 years incarceration at Level V, to be suspended after 5 years, during which he was to complete the Key Program, for 1 year at Level IV Crest Program, followed by 2 years and 6 months at Level III Aftercare.
One of his other sentences was suspended for probation (00-05-0155) and his remaining convictions were discharged as unimproved (00-05-0150, 0151, 0158).
(5) Hester's first claim is that the Superior Court committed error by finding a VOP solely on the basis of the urinalysis report, which constituted unreliable hearsay, and, therefore, was inadequate to support a finding of a VOP. There is no merit to this claim. Delaware law requires that there be competent evidence to support a finding of a VOP. We have reviewed the transcript of the VOP hearing and conclude that there was competent evidence to support the Superior Court's finding that Hester had committed a VOP.
Citing Brown v. State, 249 A.2d 269, 271-72 (Del. 1968); Dorman v. State, Del. Supr., No. 34, 2000, Holland, J. (Apr. 14, 2000).
Brown v. State, 249 A.2d at 273.
Jackie Banks, Hester's case manager at the Treatment Access Center ("TASC"), testified that she was responsible for overseeing Hester's urinalysis on June 27, 2001. On direct examination, she testified in detail regarding the procedures for the test and identified the report from the toxicology laboratory reflecting that the sample from Hester had tested positive for cocaine.
Furthermore, Banks was cross-examined vigorously by Hester's counsel regarding these issues. The Superior Court properly considered the urinalysis report and properly relied on the report and the testimony of Banks as the basis for its finding that Hester had committed a VOP.
11 Del. C. § 4334(c); Id. at 272.
(6) Hester's second claim is that his due process rights were violated because he was not permitted to question the evidence against him.
Specifically, he contends that the State should have provided an expert with first-hand knowledge of how the urinalysis was done to testify about the report and that he should have been permitted to cross-examine that expert. There is no merit to this claim. The urinalysis report and the testimony of Jackie Banks constituted a sufficient showing by the State that a VOP had been committed. If Hester believed the urinalysis report to be questionable, it was his responsibility to hire his own expert to review the report and testify on his behalf at the hearing.
Id.
In fact, at a previous hearing on July 16, 2001, Hester's counsel stated that the VOP would be contested and that Hester would hire an expert to review the test results.
(7) Hester also claims that his due process rights were violated because his case was not heard by a neutral fact finder. Specifically, Hester claims that a series of ex parte communications between the Superior Court and TASC counselor Jackie Banks violated his due process rights because he was not able to cross examine Banks concerning these communications. This claim is without merit. The record reflects that Banks communicated with the Superior Court concerning Hester's progress while he was on probation, in accordance with TASC procedure. Hester has presented no evidence of impropriety on the part of either the Superior Court or Banks. Furthermore, Hester's counsel could have cross-examined Banks at the VOP hearing about her communications with the Superior Court, but chose not to do so. There is no evidence that the Superior Court did not conduct the VOP hearing in a fair and impartial manner or that the VOP hearing did not comply with the requirements of due process.
SUPER. CT. CRIM. R. 32.1.
(8) It is manifest on the face of Hester's opening brief that this appeal is without merit because the issues presented on appeal are controlled by settled Delaware law and, to the extent that judicial discretion implicated, clearly there was no abuse of discretion.
NOW, THEREFORE, IT IS ORDERED that, pursuant to Supreme Court Rule 25(a), the State of Delaware's motion to affirm is GRANTED.
The judgment of the Superior Court is AFFIRMED.