Plaches v. State ( 2022 )

IN THE SUPREME COURT OF THE STATE OF DELAWARE
JAMES L. PLACHES, §
§ No. 126, 2020
Defendant Below, Appellant, §
§
§ Court Below: Superior Court
v. § of the State of Delaware
§
§
STATE OF DELAWARE, § C.A. Nos. 00912004522 & 1402007837
§
Plaintiff Below, Appellee. §
Submitted: April 20, 2022
Decided: June 6, 2022
Before SEITZ, Chief Justice; VALIHURA, VAUGHN, TRAYNOR, and
MONTGOMERY-REEVES, Justices, constituting the Court en Banc.
Upon appeal from the Superior Court. REVERSED and REMANDED.
Patrick J. Collins, Esquire, Collins & Associates, Wilmington, Delaware for Appellant.
John Williams, Esquire, Department of Justice, Dover, Delaware for Appellee.
VALIHURA, Justice, for the Majority:
Before this Court is an appeal from a February 24, 2020 Superior Court Violation
of Probation (“VOP”) hearing where the court held that James L. Plaches (“Plaches”)
violated his probation after he admitted to police contact. The court sentenced Plaches to
seven years of unsuspended prison time, followed by community supervision with
conditions.1
On appeal, Plaches argues that the Superior Court’s decision should be reversed
because he could not have violated his probation by complying with a condition of his
probation, namely, reporting police contact. Plaches argues that the court specifically
found one fact, police contact, and based on that finding, the Superior Court erroneously
held that “‘obviously’ the [c]ourt must find that [Plaches] violated the terms and conditions
of his probation.”2 Plaches asserts this was an abuse of discretion.
The State’s burden to prove a violation of probation requires the State to “prove by
a preponderance of the evidence that the ‘conduct of the probationer has not been as good
as required by the conditions of probation.’”3 We are unable to determine on this record
what evidence the Superior Court relied on when it found Plaches in violation of his
probation. For the reasons set forth below, we REVERSE the Superior Court’s finding
that Plaches violated his probation and REMAND this case to the trial court for
1
A64–84 (Feb. 24, 2020 Hr’g).
2
Opening Br. at 17; see A82 (Feb. 24, 2020 Hr’g).
3
Rossi v. State, 140 A.3d 1115, 1117 (Del. 2016) (quoting Collins v. State, 897 A.2d 159, 160
(Del. 2006)).
2
proceedings consistent with this opinion, which would include conducting an evidentiary
hearing to determine whether a violation of probation occurred.
I. RELEVANT FACTUAL AND PROCEDURAL BACKGROUND
A. Plaches’ Initial Guilty Plea, Incarceration, and Terms of Probation
Plaches was arrested on December 9, 2009, and pleaded guilty to the following three
charges on July 7, 2010: Rape Third Degree, Breach of Conditions, and Tampering with
a Witness.4 He was sentenced to thirty-two years of Level V imprisonment, suspended
after two years followed by additional periods of probation. As a result, Plaches was
classified as a Tier 3 sex offender.5
After completion of Plaches’ Level V incarceration time, Plaches served
approximately 21 terms of probation — none of which was completed successfully.6 Prior
to the events leading to this appeal, Plaches’ most recent violation of probation occurred
on May 22, 2018. During that time, the Superior Court resentenced Plaches to the Level
V Key Program.7 Plaches successfully completed the Key Program and the balance of his
Level V time was suspended for four concurrent terms of Level III GPS supervision.8
Plaches’ Level III supervision had certain conditions, such as successful completion of an
4
A1–2, A4 (Superior Ct. Docket). The remaining charges were dismissed. A4 (Superior Ct.
Docket).
5
A corrected sentence order did not alter the two-year term of imprisonment.
6
A31 (Violation Report). According to the Docket, Plaches violated his probation on September
13, 2013, March 18, 2014, June 12, 2014, March 3, 2017, and May 22, 2018. A1 (Superior Ct.
Docket).
7
A31 (Violation Report).
8
Id. The term GPS stands for Global Positioning System, which uses satellites to determine where
someone is located.
3
Intensive Outpatient Treatment Program, maintaining his GPS equipment, and no contact
with any minors.9 Plaches was also immediately referred to treatment at the Treatment
Access Center (“TASC”).
In May of 2019, Plaches was enrolled in the Kent County Mental Health Court.
Shortly after enrollment, Plaches was sanctioned for a positive urine screen, which
prompted an increase in his treatment. He was referred to two programs that provide
clinical mental health services, namely, ARGO and IOP.10
Two months later, Plaches was committed to Sussex Violation of Probation Center
(“SVOP”) because he began missing IOP appointments. After he was released from
SVOP, Plaches admitted himself to Dover Behavioral Health in an attempt to “get his meds
straight.”11 Plaches was released from Dover Behavioral Health in August of 2019 and
started receiving mental health treatment from Mind and Body.12
As of October 2019, Plaches’ reports showed he was doing well with his TASC and
Mind and Body treatment and that he had obtained employment with Easter Seals as a
caregiver for his elderly mother.
9
Id. Plaches was released from his Level V time on April 5, 2019.
10
ARGO, which stands for Aquila Behavioral Health Georgetown Argo Institute and IOP, the
Intensive Outpatient Program at SUN Behavioral in Georgetown, are programs that help patients
who may be transitioning from inpatient care by providing clinical mental health services.
11
Id.12
The Mind and Body Consortium offers counseling and mental health services.
4
B. The Alleged VOP at Issue
On Friday, January 3, 2020, police were called to Plaches’ residence located in
Felton, Delaware (the “Residence”) to check on the well-being of Christina Hays (“Hays”),
Plaches’ significant other at the time.13 The report identifies Samantha Clendaniel as the
“reporting person” who stated that Hays had been “drinking and was acting weird and she
wanted the police to check and make sure Hays was ok.”14 During the welfare check, Hays
stated to police that “she had been drinking and did not want to be around her roommate
James Plaches.”15 Hays asked if the police could take her to a hotel because she did not
want to stay at her residence. The police officer transported Hays to a local hotel.
Later that night, Plaches called the 24-hour probation and parole monitoring center
(the “Monitoring Center”) to inform them that family members were going to be visiting
and were planning to bring children.16 In order to avoid a violation of his probation,
Plaches requested to stay at a local hotel for the night. The Monitoring Center granted his
request.17
13
The police reports refer to Plaches’ significant other as “Christina L Hays,” but certain
transcripts refer to her as “Hayes.” We will use the spelling provided in the police reports.
14
A48 (Jan. 3, 2020 Police Report).
15
Id.16
A38 (Jan. 24, 2020 VOP Hr’g); A31 (Violation Report).
17
A73–74 (Feb. 24, 2020 Hr’g) (Plaches: “I contacted Probation and informed them that my sister
was coming with the grandchildren and was due to be there anytime, okay. I would like to stay at
a local hotel for the weekend and was given permission from Probation.”); A78 (Feb. 24, 2020
Hr’g) (Probation Officer Vorous: “Permission was given for him to leave the house by the
monitoring center and the on-call officer that Friday night. It was not given by me. But because
he called and said there were children in the house, I’m trying to do the right thing, they permitted
him to go.”).
5
A few days later on January 5, 2020, Plaches again contacted the Monitoring Center.
According to the violation report submitted by his Probation Officer, Jessica Vorous
(“Vorous”), Plaches advised the Monitoring Center that he could not return to his
Residence because his relatives were still there with children.18 Plaches stated that he
needed to relocate to a different local hotel. The Monitoring Center again granted his
request.19
On January 6, 2020, Plaches had a scheduled meeting with Vorous.20 At this
meeting, Plaches reported to Vorous that he had police contact on January 3 and
experienced a temporary residence relocation over the weekend. When describing the
police contact, Plaches allegedly told Vorous that an unannounced family visit caused
tension, and the Felton Police Department was contacted “due to a domestic call involving
[Plaches’] fiancé and her sister, and that he was not involved.”21 According to Vorous, she
questioned Plaches’ weekend arrangements, and Plaches was adamant that his relocation
was due to children at his Residence.22 He maintained that he did not know when the
18
A31 (Violation Report); A38 (Jan. 24, 2020 VOP Hr’g) (stating that Plaches called the
Monitoring Center on January 3,, 2020 (a Friday), and called “[a]gain, on Sunday” (January 5th)).
19
A38 (Jan. 24, 2020 VOP Hr’g) (Probation Officer Vorous: “Again, on Sunday, he called in to
the monitoring center to say, the children are still there, I need to say at another hotel. He was
allowed to stay at that hotel.”).
20
A31 (Violation Report) (“On January 6, 2020, Mr. Plaches reported to the Probation and Parole
office for his scheduled reporting.”).
21
A28, A31 (Violation Report).
22
A38–39 (Jan. 24, 2020 VOP Hr’g) (reflecting statements by Probation Officer Vorous).
6
relatives were leaving, and he had no choice but to relocate until the children left so that
he would be compliant with his probation terms and conditions.23
Plaches returned to the probation office the next day, on January 7, 2020, and
advised Vorous that he could return to the Residence because the children had left.24
Later that day, Felton police were dispatched to the Residence “in reference to a
physical domestic in progress.”25 Upon arrival, Hays advised the police officers that she
and Plaches had an argument in Rodney Village where Plaches punched her in the face.
Then, Hays changed her story and stated that the incident happened in Camden. Due to
the alleged location of the incident, it was determined that the police department in Camden
would be handling the report. In the meantime, Hays was transported to Bayhealth Kent
General Hospital by ambulance. Once finished at the hospital, Hays was transported by
the same police officer to the Residence to retrieve some belongings.
On January 8, 2020, the Camden Police Department issued their report regarding
the alleged domestic violence dispute that occurred between Hays and Plaches the previous
day.26 According to the police report, Hays and Plaches were involved in a verbal dispute
in a store in Camden. After leaving the store, Hays “lightly smacked Plaches on the arm”
and in return, Plaches “used [] his fist to backhand her in the face.”27 “No visible injuries
23
Id.; A31 (Violation Report).
24
A31 (Violation Report); A39 (Jan. 24, 2020 VOP Hr’g) (“Tuesday [January 7, 2020], [Plaches]
came in to see me. He said, talked to my girlfriend, the children are leaving.”).
25
A49 (Jan. 7, 2020 Police Report).
26
A50–51 (Jan. 8, 2020 Police Report).
27
A51 (Jan. 8, 2020 Police Report).
7
were observed” on Hays by the officer.28 Although the officer interviewed Hays about the
incident, the case was closed because of her lack of cooperation.
That same day, Vorous received a call from “family members in New Hampshire”29
who stated there were no children at Plaches’ Residence over the weekend.30 The family
members also stated that they were concerned for Hays, who was allegedly attempting to
leave Plaches over the weekend.31 Vorous stated that according to the family members,
“[Hays] was going from hotel to hotel, he was following her, and they were engaged in a
domestic dispute over the weekend.”32
Vorous followed up with Hays that same day (January 8, 2020) and later reported
— contrary to what the investigating police officers reported — that Hays had visible
bruises33 and was extremely frightened of Plaches. After Vorous’ conversations with Hays
and the family members, Vorous concluded that Plaches had lied to the Monitoring Center
28
Id.29
It is unclear as to whose family members these are. Vorous refers to these individuals as “family
members and residents of his reported residence,” suggesting in one section of the Violation
Report, that she spoke to Plaches’ family members, but Vorous also refers to these individuals as
“Mr. Plaches’ fiancé’s concerned family members in New Hampshire” in another section of the
Violation Report. See A27, A31 (Violation Report).
30
A39 (Jan. 24, 2020 VOP Hr’g) (“Wednesday [January 8, 2020], I get a call from family members
in New Hampshire. There were no children there at all all weekend.”); A31 (Violation Report).
31
A31–32 (Violation Report); A39 (Jan. 24, 2020 VOP Hr’g).
32
A39 (Jan. 24, 2020 VOP Hr’g).
33
We note that Vorous’s statement about Hays’s visible bruises was unsworn and not subject to
cross-examination. Vorous also wrote in her violation report that the police officers who contacted
Hays on January 8 “observed evidence of abuse,” (A31) (Violation Report), but the relevant police
report states that the officers — a Camden Police Department patrolman and a Delaware State
Trooper — on the date of the alleged assault “did not see any physical injury to [Hays].” A51
(Jan. 8, 2020 Police Report).
8
in order to stay with Hays. However, according to Vorous’ report, no charges were filed,
and Plaches was not arrested.34
C. Vorous’ Administrative Warrant
On January 10, 2020, Vorous filed an Administrative Warrant alleging that Plaches
violated the terms of his probation.35 Specifically, Vorous alleged that Plaches had violated
three conditions, namely, Conditions Two, Five, and Thirteen of his Level III probation.
First, the Administrative Warrant stated that Plaches violated Condition Two of his
probation which required that Plaches report “any new arrest, conviction, or police contact
within 72 hours to [his] supervising officer.”36 According to the Administrative Warrant,
Plaches violated this condition because “[o]n January 6, 2020, Mr. Plaches reported [to
Vorous that] police contact [occurred on January 3] due to a family dispute between [Hays]
and her sister,” and “[f]urther investigation revealed this police contact never occurred.”37
Second, Condition Five required him to “report any changes of residence . . . within
72 hours to [his] supervising officer.”38 Plaches allegedly violated this condition on
January 3, 2020, and January 5, 2020 when he contacted the probation and parole office
Monitoring Center and advised them that he needed to move from his residence due to an
34
A31–32 (Violation Report).
35
A26 (Administrative Warrant).
36
Id.37
Id. The Administrative Warrant (filed January 10, 2020) states that an investigation revealed
“police contact never occurred.” Id. However, at the January 24, 2020 VOP Hearing, Vorous
clarified that Plaches reported police contact, police contact did occur, but that “[t]he reason for
the police contact was false,” (i.e., that a dispute between Hays and her sister did not occur). A41–
42 (Jan. 24, 2020 VOP Hr’g).
38
A26 (Administrative Warrant).
9
unexpected family visit involving children. The warrant also states that “[o]n January 8,
2020, it was learned that there were no children present to [sic] his report residence.”39
According to the Administrative Warrant, Plaches “lied to probation and parole in order to
stay outside of [his] reported residence with [Hays],” and that permission would not have
been given since no children were present at the Residence.40 Therefore, Plaches allegedly
relocated without proper probation and parole permission.
Third, Condition Thirteen of his probation required Plaches to “abide by a curfew
established by [his] supervising officer.”41 Plaches allegedly violated this condition
because according to Vorous, he would not have been given permission to leave the
Residence, and he was not at the Residence during his 10 p.m.–6 a.m. curfew from January
3 until January 7.
D. Plaches’ VOP Hearings and Subsequent Arrest
The allegations set forth in the Administrative Warrant resulted in Vorous’
Violation Report charging Plaches with his sixth VOP in connection with his 2010
convictions.42 The court held a VOP hearing on January 24, 2020.
39
Id.40
Id.41
Id.42
A31 (Violation Report). The Violation Report also charges Plaches with his third VOP of his
2014 conviction.
10
At that hearing, the court heard from Officer Vorous who stated that although
Plaches was adamant that children were at the Residence, she believed that was a lie.43
Even though Vorous agreed that Plaches had reported the police contact, Vorous stated that
the dispute he reported was a domestic dispute between his girlfriend Hays and her sister.
According to Vorous, the police contact that actually occurred was Hays calling the Felton
police and saying “come get me out of this house because I don’t want to have to defend
myself [against him].”44 Thus, Vorous asserted that although Plaches had reported police
contact, he had lied about the nature of it.
The court asked Plaches whether he was disputing Officer Vorous’s statement that
the police contact that he reported was not the police contact that occurred. Plaches denied
having a domestic dispute with Hays, and instead, recited his version of the events.
According to Plaches, he and Hays argued over Hays’s sister’s plans to visit at the residence
with her nieces and nephews and over Plaches’ concern that he could not leave his mother
who was under his care at the Residence. Plaches maintained that this argument resulted
in police contact, which Plaches reported to Vorous and admitted to on the record. Thus,
Plaches confirmed that he was disputing Officer Vorous’s account of the events.
The court concluded that because “[Plaches] is disputing the allegations . . . [the
court is] going to have to set this thing down for a contested hearing.”45 The court was
43
A41 (Jan. 24, 2020 VOP Hr’g) (Probation Officer Vorous: “The allegation is not that--yes, he
reported where he was going. He lied. He was given permission to go because there was [sic]
children in the house. There were no children in that house.”).
44
Id.45
A43 (Jan. 24, 2020 VOP Hr’g).
11
adamant that a contested hearing had to be scheduled even though Vorous included the
police reports.46 While trying to schedule the contested VOP hearing, the court stated that
the parties will “have to bring witnesses [] here” and that the court will have to “make a
finding” because “someone is not telling the truth here.”47 The contested VOP hearing was
scheduled for a month later.
THE COURT: Are you disputing those events?
[PLACHES]: Well, I’m disputing the police contact of events, yes, sir, Your Honor,
....
THE COURT: Okay. But he is disputing the allegations here, so it sounds to me
like I’m going to have to set this thing down for a contested hearing.
A42–43 (Jan. 24, 2020 VOP Hr’g).
46
A43 (Jan. 24, 2020 VOP Hr’g).
PROBATION OFFICER VOROUS: Your Honor, I have included the police
reports.
THE COURT: I have to schedule a contested hearing.
[PLACHES]: Your Honor, I did not get arrested. I mean I would have been arrested
if I did something wrong.
THE COURT: It would be clearer for the court if he was arrested. He was not
arrested apparently.
PROBATION OFFICER VOROUS: Understood, understood.
Id.47
A43–44 (Jan 24, 2020 VOP Hr’g). The following colloquy occurred:
THE COURT: So this is a matter in dispute. So I can make no finding today, but I
can set--if the State wants to continue with this hearing, then I must set it down for
a contested hearing which you’ll have to have witnesses.
THE COURT: All right. We’ll set it down for a contested hearing, Madam Clerk.
What day can we give it?
[PLACHES]: I can’t ask for bail? I didn’t get no [sic] bail or nothing, not even
from the judge.
THE COURT: You know what that means, sir. That means we’ll have to bring
witnesses in here.
[PLACHES]: Yes, sir.
12
Between hearings, the police arrested Plaches and charged him with falsely
reporting an incident.48 This arrest related to Vorous’ conclusion in the Violation Report
that Plaches had falsely reported that children were in his Residence. The State entered a
nolle prosequi on this charge on March 16, 2020, but the charge was pending during what
was to be the contested VOP hearing on February 24, 2020.49 Because the matter was
pending prior to that hearing, Vorous filed a supplemental report which added a violation
of probation based on Plaches’ arrest.50
On February 24, 2020, the court began the VOP hearing, where both sides appeared
prepared to present evidence.51 But at the beginning of the hearing, Plaches’ attorney, who
was new to the case, stated that Plaches “is in agreement to admit police contact,” and that
Plaches “would like to be heard regarding sentencing.” The court then converted the matter
“from a contested VOP to a standard VOP with an admission as to police contact by the
defendant.”52 The court heard from the State as to its initial recommendation of nine years
at Level V incarceration. While explaining the nine-year recommendation, the State
THE COURT: I have to make a finding.
[PLACHES]: Yes, Your Honor.
THE COURT: That someone is not telling the truth here.
Id.48
A54–55 (Jan. 30, 2020 Warrant).
49
A88 (Disposition Record).
50
A58–63 (Suppl. Violation Report).
51
A65 (Feb. 24, 2020 Hr’g). For example, Plaches appeared ready to present an affidavit from a
family member, and the State appeared ready to provide Hays’ testimony as she was present in the
courtroom. See A70–71 (Feb. 24, 2020 Hr’g).
52
A81 (Feb. 24, 2020 Hr’g).
13
mentioned that Plaches “told the police that some people were coming to his house that
had children so he could get out of the house and follow Ms. Hay[s].”53 Although the State
said that it “would have witnesses today that would say that there were not children at the
house,” there was no testimony at this hearing.54
In response, the defense attorney noted that these allegations were odd stating that
“[u]nlike other probationers where they are not reporting contacts [with police], Mr.
Plaches took it upon himself [to advise] Probation that there was police contact and no new
charges resulted out of those contacts.”55 Therefore, the alleged violation was not due to
Plaches failing to report police contact, but instead, “[t]he allegation is based on the
probation officer not believing what [Plaches] is saying.”56 Indeed, at the January 24
hearing, Vorous acknowledged that Plaches “did report [the] police contact,” 57 but she
believed that Plaches had mischaracterized the call that caused the police to respond.
Plaches’ counsel also pointed out that the officer who responded to conduct the January 3
welfare check reported that Hays had a history of alcohol abuse and mental health issues.
His counsel also presented a letter from Plaches’ sister explaining that she and her mother’s
53
A66 (Feb. 24, 2020 Hr’g).
54
Id. The record indicates that Hays was in the courtroom at the time of the scheduled contested
VOP hearing. A70–71 (Feb. 24, 2020 Hr’g). No witnesses were sworn and no cross-examinations
occurred.
55
A69 (Feb. 24, 2020 Hr’g).
56
A68 (Feb. 24, 2020 Hr’g).
57
A41 (Jan. 24, 2020 Hr’g).
14
great grandchildren were planning a surprise visit to her mother at the Residence that
weekend but that she cancelled due to an “unexpected death on January 2nd.”58
Plaches then addressed the court. Plaches admitted to police contact but stated that
the police contact did not result in an arrest or new charges.59 The court, however, focused
on Plaches’ statement that he admitted to police contact.60 Then, the court afforded the
State an opportunity to respond and heard Vorous’ view on the matter. Vorous’ statements
echoed her statements at the first hearing. She agreed that Plaches had reported the police
contact, but she stated that “the police contact he reported was not the police contact that
happened.”61 Further, Vorous reiterated that although permission was given to him by the
58
A86 (Letter from Plaches’ Sister); see A70 (Feb. 24 2020 Hr’g) (“We do have a notarized
statement from his sister saying that she was coming from Pittsburgh that weekend, and I can hand
that up to the [c]ourt.”).
59
A72–73 (Feb. 24, 2020 Hr’g).
60
See A72 (Feb. 24, 2020 Hr’g). The court questioned Plaches during the hearing as follows:
THE COURT: But you’re admitting to police contact, are you not?
[PLACHES]: I’m sorry?
THE COURT: But you’re admitting to police contact?
[PLACHES]: I admit to police contact, but it was, like, I consider the contact, like,
it was a positive not a negative where I was questioned and put against the car and
had my ID out. It was just he come [sic] to the house, and, you know, just asked
me what was going on. I said we had an argument. He talked to her on the stair
and she was like, you know -- like, I just reported she was drinking. She was
uncredible because she kind of blacks out when she’s drinking. . . . Well, what
more or less I was trying to get to, my current order is no contact with children
under 18, so if my mother was there and my sister showed up and I’m there at the
house and they come knocking on the door and they show up, I’m in major violation
right now because I’m there with kids in the house. So what I was trying to do was
remove myself form the situation before they showed up.
A72–73 (Feb. 24, 2020 Hr’g).
61
A78 (Feb. 24, 2020 Hr’g).
15
monitoring center for him to leave, it was not given by her, and permission would not have
been given had it been known that there were no children in the house.
Without stating the reason for its decision, the court stated that it had heard from all
parties in the matter which had “been converted from a contested VOP to a standard VOP
with an admission as to police contact by the defendant.” 62 And without setting forth any
findings or addressing the probation officer’s admission that Plaches had reported the only
police contact that he had experienced on the day in question, the court then held that
“[o]bviously, the [c]ourt must find Mr. Plaches in violation of the terms and conditions of
his probation.”63 Thereafter, the court sentenced Plaches to seven years of unsuspended
prison time followed by community supervision with conditions.64
On May 14, 2020, the court denied Plaches’ motion for a sentence reduction.65
On March 27, 2020, Plaches filed a timely pro se Notice of Appeal, and filed his
Opening Brief on May 7, 2021.66 The State filed its Motion to Affirm on May 13, 2021.
This Court concluded that it was not manifest on the face of Plaches’ opening brief that his
appeal was without merit. In the interest of justice, we sua sponte determined that counsel
should be appointed to represent Plaches on appeal.
62
A81 (Feb. 24, 2020 Hr’g).
63
A82 (Feb. 24, 2020 Hr’g).
64
A82–83 (Feb. 24, 2020 Hr’g).
65
A89 (May 14, 2020 Superior Ct. VOP Order).
66
A90–127 (Plaches’ Pro Se Opening Br.).
16
II. CONTENTIONS ON APPEAL
Plaches contends that the Superior Court abused its discretion when it found him in
violation for complying with a condition of his probation. Specifically, he argues that the
Superior Court erroneously held that he violated his probation based on only one fact:
police contact. Plaches asserts that he was required to report police contact, and that the
police contact, which did not result in an arrest, is not a violation of his probation. Further,
he argues that the court erred when it turned the February 24, 2020 contested VOP hearing
into a sentencing hearing because the court should have resolved the contested issues.
Although Plaches admitted to police contact during that hearing, he contends that he did
not intend to admit a violation of probation. Therefore, Plaches asserts that the Superior
Court’s decision should be reversed and that the order revoking Plaches’ probation and the
prison sentence should be vacated.
The State argues that the court did not abuse its discretion because Plaches violated
his probation for two reasons: (1) he misrepresented the reason for the police contact, and
(2) he reported a change of residence based on a false claim that there were minor children
present in his Residence. Therefore, the State argues that there was sufficient competent
evidence for the Superior Court to determine that Plaches violated his probation.
III. STANDARD OF REVIEW
This Court reviews the Superior Court’s revocation of probation for abuse of
discretion.67
67
Brown v. State, 249 A.2d 269, 271–72 (Del. 1968).
17
IV. ANALYSIS
We address Plaches’ contention that this Court should reverse the trial court’s
revocation of his probation because there is no competent evidence that an actual violation
of probation occurred. After reviewing the record, we conclude that the basis upon which
the Superior Court found Plaches to be in violation of his probation is not set forth on the
record and is, therefore, unclear. Accordingly, we remand this matter with instructions to
conduct an evidentiary hearing to determine whether a violation of probation occurred.
Although “a defendant’s admission of the alleged crime is considered sufficient
competent evidence to revoke probation,” when the “defendant has not admitted violating
his probation, some competent evidence linking the defendant to the crime is necessary.”68
Further, “when the State claims that a defendant violated probation by committing a crime,
the State must produce competent evidence that shows not only that a crime occurred, but
also that the defendant is linked to the crime.”69
In Collins v. State, for example, the State asserted that the defendant violated his
probation when he broke into his ex-girlfriend’s home and caused extensive damage inside.
The only evidence that the State presented at Collins’ VOP hearing was testimony from
the investigating police officer. Although the officer had personally observed the damage
at the home, he had no personal knowledge of who or what caused that damage. The
Superior Court found that the defendant violated probation based on the officer’s personal
68
Collins, 897 A.2d at 161 (footnote omitted).
69
Rossi, 140 A.3d at 1123.
18
observation of the damage and his recitations of inadmissible hearsay. On appeal, this
Court reversed, noting that “[a]lthough physical evidence of the damage to the apartment
may have indicated that criminal conduct had occurred, it did not connect Collins to that
crime,” and, therefore, the revocation of his probation was an abuse of discretion.70
In this case, Plaches’ admission to having police contact is competent evidence
connecting him to the scene of an alleged domestic dispute where police were dispatched
on January 3. However, the only information the State presented at Plaches’ VOP hearing
consisted of Vorous’ unsworn statements.71 Similar to the investigating police officer in
Collins, Vorous had no personal knowledge of what prompted the police contact on
January 3. Rather, Vorous provided information about that incident based on inadmissible
hearsay, from what Hays and Hays’ family allegedly told her.
Plaches contends that Vorous made several untrue statements. He claims that her
statement that Hays called the police on January 3 to “come get me out of this house
because I don’t want to have to defend myself” was untrue. Rather, the police report states
that Hays’ sister, Samantha Clendaniel, called the police. Vorous also claimed to have
seen evidence of the bruising on Hays on January 8, 2020 due to the alleged incident that
70
Collins, 897 A.2d at 162. Our Court stated that, “[a]lthough the rules of evidence applicable to
criminal trials are relaxed in violation of probation proceedings and hearsay evidence is
admissible, Delaware law requires ‘some competent evidence to prove the violation asserted.’”
Id. at 160.
71
See id. at 160–61 (“Although the probationer’s guilt need not be established beyond a reasonable
doubt, probation cannot be revoked solely upon the basis of testimony of a witness with ‘no first-
hand knowledge of the events constituting the violations.’”) (footnote omitted); Brown, 249 A.2d
at 271 (reversing a revocation of probation where there was no competent evidence beyond a police
officer’s testimony relaying information from a police report and newspaper article, that the
probationer had violated her probation by committing a crime).
19
occurred on January 7, but the officers from each of three departments (Felton, Camden,
and State Police) stated in their reports that they saw no evidence of injury to Hays on
January 7, 2020.72 Plaches also complains that neither Vorous nor the court considered the
notarized letter from Plaches’ sister who, during the weekend in question, was planning to
bring her grandchildren to the Residence for a visit, but instead, relied on a call from Hays’
family who were not planning to visit.
Vorous did relate that Plaches had told her directly that there were children in the
house.73 The facts surrounding whose children would be visiting are unclear. At one point,
Plaches states that it was Hays’ family. But, as mentioned, he also submitted a notarized
letter from his sister indicating that her grandchildren would be visiting.74 Whether Plaches
was mistaken about whether and whose children would be visiting or whether he lied so
that he could leave the Residence was not addressed or resolved by the Superior Court.
More critically, the Superior Court never made a finding as to what its basis was for finding
a violation of Condition Two which concerned the alleged incident on January 3.
Despite Hays’ presence in the court room, the State did not present Hays’ testimony.
Based upon the statement by Plaches’ counsel, the State apparently acquiesced in forgoing
the evidentiary hearing. We are not faulting the State for doing so, particularly since
72
See A51 (Jan. 8, 2020 Police Report).
73
Vorous’ statements regarding what Plaches allegedly told her during his scheduled probation
meeting was not hearsay. See D.R.E. 801(d)(2)(A). “A statement that meets the following
conditions is not hearsay: . . . (2) An Opposing Party’s Statement. The Statement is offered against
an opposing party and: (A) was made by the party in an individual or representative capacity.” Id.74
A70 (Feb. 24, 2020 Hr’g).
20
Plaches’ counsel advised the court that Plaches would admit to police contact and wished
to be heard regarding sentencing. Nevertheless, we are left with a record that provides
neither an adequate basis for the revocation of probation, nor a basis to find that Plaches
knowingly and voluntarily waived his right to a contested evidentiary hearing.
As stated in Rossi, “[a]lthough the State’s burden in proving a violation of probation
is not an onerous one, that burden has long required that the State at least present some
competent evidence that shows the defendant did not comply with the terms of his
probation.”75 No doubt, absent an admission by Plaches that he violated the terms and
conditions of his probation, that burden will require the State in this case to put on some
evidence aside from Plaches admitting to a police contact, which, by all accounts, Plaches
reported to his probation officer. “But given the serious consequences that can result from
a violation of probation” — as exemplified here by the sentence of seven-years of
unsuspended prison time, followed by community supervision with conditions — the
requirement of competent evidence “is a reasonable one that provides the responding
probationer with an important procedural protection, while still leaving the State well-
positioned to prosecute probation violations much more inexpensively and efficiently than
crimes.”76 The Superior Court’s reliance on Plaches’ admission to police contact (a term
and condition of his probation) without more, does not provide a basis for finding that a
75
Rossi, 140 A.3d at 1124. “Competent evidence” is “evidence that would be admissible in a
criminal trial and is proof that the defendant violated the terms of his probation.” Id. at 1119. As
we reiterated in Rossi, inadmissible hearsay, without some corroborating admissible evidence, is
a basis too untrustworthy to terminate a person’s freedom. Id. at 1120.
76
Id. at 1124.
21
crime occurred, and that Plaches was linked to that crime. Without competent evidence
establishing both requirements, the revocation of Plaches’ probation was an abuse of
discretion.77
And as to whether Plaches, through counsel, waived his right to a contested VOP
hearing by admitting to police contact and proceeding to sentencing, we hold that he did
not. As we recently stated in Purnell v. State, “[w]aiver is the voluntary and intentional
relinquishment of a known right.”78 “In the criminal context, it is ‘incumbent upon the
State to prove’ waiver, and ‘the courts indulge in every reasonable presumption against
waiver.’”79 “Whether a particular right is waivable; whether the defendant must participate
personally in the waiver; whether certain procedures are required for waiver; and whether
the defendant’s choice must be particularly informed or voluntary, all depend on the right
at stake.”80
77
See Brown, 249 A.2d at 272 (concluding that “there being no competent evidence upon which
to base the exercise of sound judicial discretion, the revocation of the probation and the imposition
of the prison sentence constituted an abuse of discretion”).
78
Purnell v. State, 254 A.3d 1053, 1101 (Del. 2021) (quoting Daskin v. Knowles, 193 A.3d 717,
725 (Del. 2018)).
79
Id. (quoting Flamer v. State, 490 A.2d 104, 113 (Del. 1983)). “The distinction between waiver
and forfeiture is most visible in so-called ‘plain error’ analysis, where a forfeited allegation that a
defendant’s rights were violated can nevertheless be the basis for later reversal, but a waived right
cannot.” Id. at 1101 (footnotes omitted). At most, one might argue that Plaches forfeited his right
to a contested VOP hearing. But even under plain error standard of review, we can and do
conclude, given the potential loss of liberty at stake, that finding that he is not entitled to an
evidentiary hearing under these unique circumstances would be plain error. As stated by the
United States Supreme Court, “most States have recognized that there is no interest on the part of
the State in revoking parole without any procedural guarantees at all.” Morrissey v. Brewer, 408
U.S. 471, 484 (1972). Therefore, ”[w]hat is needed is an informal hearing structured to assure that
the finding of a parole violation will be based on verified facts and that the exercise of discretion
will be informed by an accurate knowledge of the parolee’s behavior.” Id.80
Purnell, 254 A3d at 1101 (quoting United States v. Olano, 507 U.S. 725, 733 (1993)).
22
Revocation of probation results in a loss of liberty and entitles the probationer to a
hearing with certain “minimum requirements of due process.”81 The “minimum
requirements of due process” regarding the revocation of probation have been summarized
as follows:
(a) written notice of the claimed violations of (probation or) parole; (b)
disclosure to the (probationer or) parolee of evidence against him; (c)
opportunity to be heard in person and to present witnesses and documentary
evidence; (d) the right to confront and cross-examine adverse witnesses
(unless the hearing officer specifically finds good cause for not allowing
confrontation); (e) a “neutral and detached” hearing body such as a
traditional parole board, members of which need not be judicial officers or
lawyers and (f) a written statement by the factfinders as to the evidence relied
on and reasons for revoking [probation or] parole.82
Similar safeguards are reflected in Delaware Superior Court Criminal Rule 32.1.83
In this case, the record below does not provide a clear indication that Plaches
voluntarily and intentionally waived his right to a contested hearing. Although defense
counsel stated on the record, and in front of Plaches, that “[Plaches] is in agreement to
admit police contact,” as explained above, police contact, in and of itself, was not a
violation of Plaches’ probation.
Rather, the record suggests that Plaches did not understand that admitting to police
contact was considered by the court to be the equivalent to admitting to a violation of
probation because he repeatedly stated that the police contact did not result in new
81
See Perry v. State, 741 A.2d 359, 363 (Del. 1999).
82
Id. at 363.
83
See Del. Super. Ct. Crim. R. 32.1 (setting forth the process a person should be afforded when
there is a revocation of partial confinement or probation).
23
charges.84 Plaches did ask that he be sentenced to time served with no probation.85
Although we could assume that Plaches, having violated probation several times before,
should have understood that defense counsel’s admission on the record, coupled with the
request to be heard regarding sentencing, could be considered a waiver of his contested
hearing, affirming the court below based on this assumption would require us to speculate
as to what Plaches may or may not have understood during the February 24, 2020 hearing.
We decline to do so. Instead, we remand for an evidentiary hearing so that the Superior
Court can address these matters and state its findings on the record.
Finally, the State asks us to find, alternatively, that Plaches violated the other
conditions (Five and Thirteen) of his probation. However, the Superior Court made no
findings of violations of these conditions, and they are not properly the subject of this
appeal.
V. CONCLUSION
For the foregoing reasons, the judgment of the Superior Court is REVERSED and
REMANDED for additional proceedings consistent with this opinion.
84
A71 (Feb. 24, 2020 Hr’g) (Plaches: “What I would like to bring out to Your Honor, I was
violated for police contact that did not result in new charges whatsoever.”). A72 (Feb. 24, 2020
Hr’g) (Plaches: “But what I’d like to get to, [Y]our Honor, is the police contact I did have, I did
report like I was supposed to as of --you know, the police report . . .. It does say I had police
contact.”). A72–73 (Feb. 24, 2020 Hr’g) (Plaches: “I admit to police contact, but it was, like, I
consider the contact, like, it was a positive not a negative where I was questioned and put against
the car and had my ID out.”). A76 (Feb. 24, 2020 Hr’g) (Plaches: “Yes, I had police contact. Did
I get in trouble for it? No, sir. I did report it within my 72-hour allotted time. And, [Y]our Honor,
I’m asking for -- you know, nine years, it don’t count for nine years.”).
85
A75 (Feb. 24, 2020 Hr’g) (Plaches: “With all of this information I presented to you, [Y]our
Honor, I’m asking just to have time served with no probation to follow so I can leave the state and
go back to my family in upstate New York.”).
24
VAUGHN, Justice, dissenting:
I would find that the Superior Court did not abuse its discretion, or otherwise
err, by finding that the defendant violated condition two of his probation, which
required him to report police contact. I believe the record supports a conclusion that
the Superior Court found that the defendant admitted a violation of that condition.86
Every Level III probationer receives 13 standard conditions of supervision.87
There are additional conditions for sex offenders. In many cases, special conditions
specific to the individual probationer are added. At least a general awareness that
standard conditions of supervision exist becomes a part of the working, common
knowledge of any experienced judge, prosecutor, or defense attorney. The
probationer, of course, is expected to be aware of each condition of supervision to
which he is subject. Condition two of the standard conditions, the police contact
provision, requires the probationer to “report any new arrest, conviction, or police
contact within 72 hours to your Supervising Officer.”88 A violation is the failure to
report the police contact, not the mere fact of police contact. There are many reasons
a probationer may have police contact. The probationer may be a victim of a crime
that is reported to the police. The probationer may be a witness to a crime committed
86
When an issue is first raised on appeal, this Court normally reviews for plain error. Since I
don’t believe the trial judge committed any error, the standard of review is not an issue for me.
87
See SENTAC Benchbook 2021-22 at 134.
88
Id.25
by another, and the police may interview the probationer in connection with that
crime. No probation officer would contend that police contact, by itself, without
more, is a violation of probation. But even innocent police contact must be reported,
and failure to report that contact violates condition two.
The condition two, five, and 13 allegations against the defendant were stated
in the Administrative Warrant as follows:
Condition # : 2 You must report any new arrest,
conviction, or police contact within 72 hours to your
supervising officer.
On January 6, 2020, Mr. Plaches reported police contact
due to a family dispute between his fiance and her sister.
Further investigation revealed this police contact never
occurred.
Condition # : 5 You must report any changes of
residence and/or employment within 72 hours to your
supervising officer.
On January 3, 2020, Mr. Plaches contacted the probation
and parole office and advised that he needed to move from
his residence due to children being present. He advised
that he would be staying in a local hotel. On January 5,
2020, Mr. Plaches again contacted the probation and
parole office and advised that he still could not return to
his reported residence due to children being present in his
home. He relocated to another local hotel. On January 8,
2020, it was learned that there were no children present to
his report residence. Mr. Plaches lied to probation and
parole in order to stay outside of reported residence with
his fiance. Given that there were not children present at
his reported residence, Mr. Plaches would not have had
permission to leave his residence. Therefore, Mr. Plaches
relocated without proper probation and parole permission.
26
Condition # : 13 You must abide by a curfew
established by your supervising officer.
On January 3, 2020, Mr. Plaches contacted the probation
and parole office and advised that he needed to move from
his residence due to children being present. He advised he
would be staying at a local hotel. On January 5, 2020, Mr.
Plaches again contacted the probation and parole office
and advised that he still could not return to his reported
residence due to children being present in his home. He
relocated to another local hotel. On January 8, 2020, it
was learned that there were no children present to his
report residence. Mr. Plaches lied to probation and parole
in order to stay outside of reported residence with his
fiance. Given that there were not children present at his
reported residence, Mr. Plaches would not have had
permission to leave his residence. Therefore, he was not
at his reported residence during his 10pm-6am curfew
from January 3 until January 7.89
In the Violation Report, the condition two allegation was stated more fully as
follows:
You must report any new arrest, conviction, or police
contact within 72 hours to your supervising officer.
On January 6, 2020, during an office visit, Mr. Plaches
reported having police contact. He reported that Felton
Police Department responded to his reported residence on
January 3, 2020 due to a domestic call involving his fiance
and her sister and that he was not involved. Felton Police
Department complaint explains the call was in fact Mr.
Plaches’ fiance requesting police escort/assistance in
leaving the residence due to Mr. Plaches.90
89
App. to Opening Br. at A26. The defendant was not permitted to have contact with children
because he was a sex offender.
90
Id. at A28.
27
Officer Vorous never argued that the defendant violated his probation simply
by having police contact. Her theory was that the obligation to report police contact
carried with it an obligation to report police contact truthfully, that is, to report the
police contact that actually occurred. The defendant reported his January 3 police
contact, but reported that it involved a dispute between his girlfriend and her sister
to which he was, in essence, an innocent bystander. Officer Vorous received
information through the Felton Police Department report that led her to believe the
defendant was the target of the January 3 contact and the contact involved a potential
domestic violence situation between the defendant and his girlfriend. Her argument
was that he failed to report the specific police contact that actually occurred.
At the January 24 violation of probation hearing, Officer Vorous explained
her theory of the alleged condition two violation to the Superior Court in the
defendant’s presence:
He did report police contact. However, that is not the
police contact that occurred. The police contact that
occurred was the girlfriend was calling Felton police,
come get me out of this house because I don’t want to have
to defend myself. That is not what was related to
probation.91
The judge asked the defendant whether he disputed the alleged condition two
violation, and he responded, “Well, I’m disputing the police contact of events, yes
91
Id. at A41.
28
sir.”92 Most of the back and forth at the January 24 hearing involved conditions five
and 13. To his credit, the judge scheduled the matter for a hearing away from the
distractions of a VOP calendar to a hearing date of its own, at which he could give
the defendant’s case his full time and attention. This resulted in the second hearing
on February 24.
That brings us to defense counsel’s statement at the very beginning of the
February 24 hearing that “he is in agreement to admit police contact, and we would
like to be heard regarding sentencing after the State makes its recommendation.”93
I draw two inferences from defense counsel’s statement. The first is that the
defendant and his attorney had decided they did not want to litigate the merits of the
alleged violations. The second is that they settled on condition two as the alleged
violation they wanted to admit.
The Superior Court then asked the prosecutor for her sentencing
recommendation. She proceeded to make her sentencing comments. She reported
that she had witnesses present who would testify concerning the alleged violations
of conditions five and 13. The State did not do anything to impede the defendant
from having a hearing on the merits of the alleged violations if the defendant had
wanted to have one.
92
Id. at A42.
93
Id. at A65.
29
Defense counsel then proceeded with her sentencing comments. It appears
from those comments that defense counsel seems to have understood the condition
two allegation well enough. She said, “when I first reviewed this violation, I actually
received it from another attorney in the office.”94 From this, an inference can be
drawn that she reviewed and was aware of the alleged condition two violation. She
also stated, “At that time, my review of the allegations is that unlike a lot of
probationers, Mr. Plaches was contacting his probation officer. He’s not absconding
from probation. The allegation is based on the probation officer not believing what
he is saying.”95 From this, it appears that defense counsel understood that the alleged
violation of condition two was not merely that the defendant had police contact, but
that he falsely represented the nature of the police contact and had not reported the
police contact that actually occurred. This was the theory that Officer Vorous
consistently explained. The defense attorney also commented with respect to
conditions five and 13 that “if we were to have a hearing today, a lot of this violation
comes down to whether or not Mr. Plaches was truthful in his information to
Probation that there were grandkids visiting the residence he was staying at.”96
94
Id. at A68.
95
Id.96
Id. at A70.
30
When the defendant made his sentencing comments, he began with police
contact:
THE DEFENDANT: Good morning, your Honor.
THE COURT: Good morning.
THE DEFENDANT: James Plaches. Your Honor, yes,
there was police contact. There was a domestic dispute,
no hands-on or nothing like that, between my fiance and I
at the time. We are just friends now as we resituated our
situation and said we want to be friends.
What I would like to bring out to your Honor, I was
violated for police contact that did not result in new
charges whatsoever. The officer just told me to leave her
be and just stay away, and he made me pour the bottle of
99 percent alcohol out in the driveway the night he was
disputed here. That’s why we were arguing, because she
was drinking and we were arguing about my family
coming to see my mother. 97
After additional comments, the Superior Court interrupted:
THE COURT: But you’re admitting to police contact?
THE DEFENDANT: I admit to police contact, but it was,
like, I consider the contact, like, it was positive, not a
negative where I was questioned and put against the car
and had my ID out.98
When the defendant reported the January 3 police contact on January 6, he
reported that it occurred due to a dispute between his girlfriend and her sister and he
97
Id. at A71.
98
Id. at A72-A73.
31
was uninvolved. In his first sentencing comments, the defendant admitted that the
January 3 police contact did not occur the way he reported it. He admitted that it
was not the result of a dispute between his girlfriend and her sister to which he was
an innocent bystander. He acknowledged that it was the result of a domestic dispute
between his girlfriend and him, as Officer Vorous had alleged. I would find that the
initial sentencing comments from the defendant are an admission that he violated the
police contact condition as alleged by Officer Vorous. The fact that he had not been
arrested on that occasion and he considered the contact “positive”99 were offered as
mitigation.
After defense counsel and the defendant made their comments, the judge
asked the prosecutor whether she wished to respond to anything the defendant had
said. She asked the court to hear from Officer Vorous, who repeated that “yes, he
did report police contact to me. That is true. However, the police contact he reported
was not the police contact that happened.”100
The prosecutor then readdressed the court, stating that “I think the main issue
here is that he did report the police contact, but the police contact that he reported to
his probation officer was not what really happened; that he lied about the police
99
Id. at A72.
100
Id. at A78.
32
contact.”101 These additional comments by Officer Vorous and the prosecutor drew
no request from the defendant or his attorney to readdress the Court.
I think the defendant’s theory of this case, first asserted on appeal, that he and
his attorney intended to admit only that he had police contact and he was wrongly
found to have violated his probation for merely having police contact, is not credible.
The alleged violation—that he gave his probation officer a false account of police
contact—was clearly stated in the Violation Report. The allegation was stated in
open court in the defendant’s presence by Officer Vorous at both the January 24 and
February 24 hearings. The defense attorney’s sentencing comments at the February
24 hearing make it clear that she understood the allegation.
I also think the implication in the defendant’s theory that the defense attorney
and the Court both thought that merely having police contact alone is a violation of
probation is not credible. I think the choice of words used by the defense attorney
and the Court, that the defendant “admit[ted] police contact,”102 was just a short-
hand method of referring to the violation as alleged. It would make no sense for
defense counsel to couple the statement that “he is in agreement to admit police
contact”103 with the statement that they would like to be heard regarding sentencing
101
Id. at A79.
102
Id. at A65, A72.
103
Id.33
if she did not mean that the defendant admitted a violation of condition two, failure
to report police contact as alleged by Officer Vorous. It seems to me that statements
made by the defendant when he addressed the court, discussed above, bear this out.
I think the record is clear enough that the judge relied on admissions by defense
counsel and the defendant that he violated condition two as alleged by Officer
Vorous. I do not think a remand is necessary. I would affirm the judgment of the
Superior Court.
34