Opinion
C.A. No. 04A-03-004 WLW.
Submitted: July 7, 2004.
Decided: October 13, 2004.
Upon Appeal from Court of Common Pleas. Affirmed.
Mr. Anthony M. Tolson, pro se, Dover, Delaware.
Jason C. Cohee, Esquire, Department of Justice, Dover, Delaware, attorney for Appellee.
ORDER
Upon consideration of the record below, it appears to this Court that:
1. Anthony M. Tolson (" Appellant") appeals an Order from the Court of Common Pleas declaring him a habitual offender pursuant to 21 Del. C. § 2802. For the reasons below, this Court finds Appellant's argument to be without merit and hereby affirms the judgment of the Court of Common Pleas. The pertinent facts are set forth below.
2. Pursuant to 21 Del. C. § 2804, the Attorney General initiated proceedings against Appellant in February 2004 by filing a petition in the Court of Common Pleas requesting the Court to determine whether Appellant was a habitual offender as defined by 21 Del. C. § 2802. Attached to the petition was a copy of Appellant's driving record as certified by the Department of Public Safety. On February 11, 2004, a Rule to Show Cause Writ, along with a copy of the petition order and record, was serviced upon Appellant via first class mail to the address on Appellant's certified driving record.
On March 5, 2004, Appellant failed to appear in court and a hearing was held in his absence. At the conclusion of the hearing, the Commissioner found Appellant to be a habitual offender as defined by 21 Del. C. § 2802. A copy of the Commissioner's Proposed Findings of Fact and Recommendation was sent to Appellant on March 15, 2005. On March 30, 2004, having received no objections, the trial judge accepted the Commissioner's Proposed Finding of Fact and Recommendations and declared Appellant a Habitual Offender pursuant 21 Del. C. § 2802. A copy of the order was forwarded to Appellant.
3. On March 24, 2004, Appellant appealed the judgment from the Court of Common Pleas. In his pleadings, Appellant asserts that he works two jobs, his children need transportation to school and daycare, he has to pay child support, and two of his four children have sickle cell. On April 26, 2004, Appellant's Opening Brief was scheduled to be due on May 17, 2004. Appellant failed to file a brief and a Final Delinquent Case Notice was sent to Appellant on June 3, 2004. On June 25, 2004 pursuant to Superior Court Civil Rule 107(e), having no further information provided to the Court, this Court ordered the case to be decided based on the pleadings filed.
Appellant apparently appealed the Commissioner's Proposed Findings and Recommendation to the Superior Court before the Court of Common Pleas accepted the Commissioner's findings. Although this is procedurally incorrect, the trial judge subsequently accepted the Commissioner's Proposed Findings and Recommendations. Accordingly, this Court will treat Appellant's appeal as though Appellant had properly appealed the judgment of the Court of Common Pleas.
4. This court reviews errors of law and errors of fact similar to appeals handled by the Supreme Court. This court will not disturb factual findings by the court below if they were derived logically and substantial evidence exists in the record to support such findings. However, errors of law will be reviewed de novo.
Levitt v. Bouvier, 287 A. 2d 671, 673 (Del. 1972).
Downs v. State, 570 A. 2d 1142, 1144 (Del. 1990).
Although Appellant does not contend that a legal error has occurred, the Commissioner's factual findings were inaccurate, or that he was denied due process, it should be noted the record indicates proper procedure as prescribed under 21 Del. C. §§ 2802-2808 was followed. Further, there is sufficient evidence in the record to support a finding that Appellant is a habitual offender as defined by 21 Del. C. § 2802. In accordance with 21 Del. C. § 2802(a)(1), Appellant has been convicted of three crimes within a five year period. Accordingly, the Commissioner properly found and the trial judge properly declared Appellant to be a habitual offender as defined by the statute.
19 Del. C. § 2802 in part reads: An "habitual offender" shall be any person, resident or nonresident, whose driving record, as maintained in the office of the Division of Motor Vehicles, shows that such person has accumulated convictions for separate and distinct offenses described in subdivision (1) of this section during a 5-year period or subdivision (2) of this section during a 3-year period, provided, that where more than 1 included offense shall be committed within a 24-hour period, such multiple offenses shall be treated for the purposes of this Chapter as 1 offense:
(1) Three or more convictions — Three or more convictions, singularly or in combination of any of the following separate and distinct offenses arising out of separate acts:
d. Driving a motor vehicle without a license to do so, in violation of § 2701(a), (b), or (c) of this title.
e. Driving a motor vehicle during a period of suspension or revocation, in violation of § 2756 of this title. . . .
Appellant was convicted of violating 1) 19 Del. C. § 2756(a) on July 31, 2000 for an incident that occurred on July 31, 2000, 2) 19 Del. C. § 2701 (b) on October 15, 2003 for an incident that occurred on June 9, 2003, and 3) 19 Del. C. § 2701(b) on July 2, 2003 for an incident that occurred on June 11, 2003.
5. Appellant argues the judgment of the Court of Common Pleas should be reversed not because it was factually or legally incorrect but because he has two jobs, pays child support, and needs to care for his children. Although Appellant's contentions may be sincere, they are without legal merit and offer no basis to disturb the decision of the trial judge. Accordingly, the appeal is dismissed and the judgment of the Court of Common Pleas is hereby affirmed.
IT IS SO ORDERED.