Opinion
ID. No. 9708009409.
Submitted: March 15, 2000.
Decided: May 30, 2000.
Upon Consideration of Appeal From Decision of Court of Common Pleas
Dennis Kelleher, Esq., Dover, Delaware. Attorney for the State.
David Steelman, Pro Se.
REVERSED
ORDER
Upon consideration of appellant's brief in support of his appeal, and the record in this case, it appears that:
(1) Appellant David Steelman ("Steelman") has appealed from a judgment of the Court of Common Pleas in and for Kent County ("CCP") revoking his probation.
(2) On October 30, 1997, Steelman pled guilty in CCP to a worthless check charge and was sentenced to one year at Level V, suspended for one year at Level II. At the time of his CCP sentencing, Steelman was being held at Level V in connection with charges pending in Superior Court. The record indicates he was released from Level V on December 2, 1997. When his probation officer was unable to establish contact with the appellant, he submitted a violation of probation report alleging that the appellant had absconded from probation. The report indicated that on December 18, 1997, the probation officer attempted to contact Steelman to instruct him to report to probation on January 5, 1998. A capias was issued. The capias was returned on February 17, 1999, at which time the court below held a violation of probation hearing, found Steelman to have violated his probation for nonpayment of restitution, and sentenced him to one year at Level V suspended after 90 days for one year at Level III.
(3) Steelman asserts various grounds in support of his appeal from the CCP judgment and sentencing. The Court finds it necessary to address only one of the grounds asserted. Specifically, Steelman asserts that he could not have violated his probation because he was incarcerated in New Mexico at the time the violation allegedly occurred and was, therefore, unable to report or pay the restitution.
(4) When addressing appeals from the Court of Common Pleas, the court sits as an intermediate appellate court. As such, its function is the same as that of the Supreme Court. Therefore, the court's role is to "correct errors of law and to review the factual findings of the court below to determine if they are sufficiently supported by the record and are the product of an orderly and logical deductive process."
State v. Richards, Del. Super., Cr. A. No. 96091381, Toliver, J. (May 28, 1998) (Opinion and Order).
State v. Huss, Del. Super., Cr. A. No. IN93-04-0294AC, Gebelein, J. (October 8, 1993) (Mem. Op.) (citing Shipkowski v. State, Del. Super., Cr. A. No. IK88-03-0033A, Steele, J. (July 28, 1989); and Baker v. Connell, Del. Supr., 488 A.2d 1303 (1985)).
Id. (citing Levitt v. Bouvier, Del. Supr., 287 A.2d 671, 673 (1972)).
The issue of whether or not Steelman violated the terms of his probation is a factual question to be determined by the court below. "[R]evocation of probation is an exercise of broad discretionary power . . . and on appellate review, the question may be limited to whether there has been an abuse of discretion." A probation revocation requires that the proffered evidence reasonably assure the judge that the probationer's conduct violated the conditions of his or her probation. In order to affirm a probation revocation the reviewing court must be satisfied that the determination that a violation took place was supported by competent evidence.
Brown v. State, Del. Super., 249 A.2d 269, 271 (1968).
Id.
(5) In this case the defendant repeatedly asserted he was unable to report to his probation officer or pay restitution because he was incarcerated at all times relevant to the proceeding. He stated that he went directly from Level V here in Delaware in December 1997 to New Mexico where he was held for charges in that jurisdiction. After completing his sentence in New Mexico, defendant stated he was returned to custody in Delaware. In fact, he stated that he had been returned to Gander Hill the evening prior to his probation revocation hearing. Significantly, the defendant was able to state the name of the specific prison in which he said he was held in New Mexico and the name of the officer or agent who transported him back to Delaware. He said that he had arrived in Philadelphia and been taken to Gander Hill the night before the violation hearing. The probation officer was relying on his probation report which recorded the officer's attempts to contact the defendant back in December 1997 and January 1998. The probation officer did not have any information concerning the defendant's having been taken to New Mexico and returned to Delaware the day before. At a recess, the probation officer contacted Gander Hill and was told by the Records Supervisor there that Mr. Steelman arrived at Gander Hill on February 16, 1999 (the night before), and that he came in "from the street." On this record, the court below found the defendant in violation of his probation for failing to pay restitution.
(6) Before finding the appellant to have violated his probation and sentencing him to 90 days at Level V, the court below should have afforded the appellant an opportunity to document his contention that he was incarcerated the entire time and therefore unable to report or pay restitution, or directed the probation officer to look into the matter further to see whether the defendant's explanation could be confirmed or not. The fact that he was able to give some details concerning his incarceration in New Mexico and his return to Delaware gave the appellant's explanation a ring of truth. The Court believes that it was an abuse of discretion to find the appellant in violation of his probation and impose a Level V sentence under these circumstances.
THEREFORE, the order of the Court of Common Pleas adjudging the appellant to have violated his probation is reversed, and the matter is remanded to the Court below for any further proceedings not inconsistent with this order.