Scarborough v. State ( 2018 )

IN THE SUPREME COURT OF THE STATE OF DELAWARE
EDWIN SCARBOROUGH, §
§
Defendant Below, § No. 37, 2018
Appellant, §
§ Court Below—Superior Court
v. § of the State of Delaware
§
STATE OF DELAWARE, § Cr. ID Nos. 1208002007 (K) &
§ 1204019450 (K)
Plaintiff Below, §
Appellee. §
Submitted: April 26, 2018
Decided: June 8, 2018
Before VALIHURA, SEITZ, and TRAYNOR, Justices.
ORDER
This 8th day of June 2018, upon consideration of the appellant’s opening brief,
the appellee’s motion to affirm, and the record below, it appears to the Court that:
(1) The appellant, Edwin Scarborough, filed this appeal from the Superior
Court’s December 21, 2017 order sentencing him for a violation of probation
(“VOP”). The State of Delaware has moved to affirm the Superior Court’s judgment
on the ground that it is manifest on the face of Scarborough’s opening brief that the
appeal is without merit. We agree and affirm.
(2) The record reflects that, on January 6, 2014, Scarborough pled guilty to
Drug Dealing (Tier 2) in Criminal ID No. 120419450. The Superior Court sentenced
Scarborough, effective September 20, 2012, to fifteen years of Level V
incarceration, with credit for eleven days previously served, suspended after three
years for decreasing levels of supervision. Sentencing conditions included no
alcohol or drugs unless medically prescribed. This Court affirmed the Superior
Court’s judgment on direct appeal.1
(3) On February 17, 2014, Scarborough pled guilty to Drug Dealing in
Criminal ID No. 1208002007. The Superior Court sentenced Scarborough to eight
years of Level V incarceration, suspended after three years for decreasing levels of
supervision. In September 2016, the Superior Court modified this sentence to eight
years of Level V incarceration, suspended immediately for time served, followed by
one year of Level III probation with weekly Narcotics Anonymous meetings.
(4) In July 2017, a VOP report was filed with the Superior Court. The
report alleged that Scarborough had missed multiple appointments with his
probation officer and tested positive for cocaine. After a VOP hearing on August
11, 2017, the Superior Court found Scarborough had violated his probation. The
Superior Court sentenced Scarborough as follows: (i) for Drug Dealing (Tier 2),
twelve years of Level V incarceration, suspended after thirty days for eighteen
months of Level III probation; and (ii) for Drug Dealing, seven years of Level V
incarceration, suspended for eighteen months of Level III probation. The VOP
1
Scarborough v. State, 2015 WL 4606519 (Del. July 30, 2015).
2
sentence included zero tolerance conditions for alcohol, drugs, and missed
appointments.
(5) On October 26, 2017, an administrative warrant was filed for
Scarborough’s VOP. The warrant alleged that Scarborough had violated his
probation by committing new crimes, testing positive for cocaine twice, and failing
to report to the Treatment Access Center (“TASC”) as directed. According to the
VOP report, Scarborough was arrested for drug related offenses on October 25,
2017, tested positive for cocaine on September 27, 2017 and October 4, 2017,
admitted to using cocaine, was advised by TASC to engage in an intensive outpatient
program at Fellowship, was discharged by Fellowship for failing to attend meetings,
and failed to report to TASC the week of October 9, 2017.
(6) On December 15, 2017, after the request for a continuance of the VOP
proceeding pending resolution of the new charges was denied, Scarborough’s
counsel informed the Superior Court that Scarborough admitted the violations for
positive drug screens, missed appointments with TASC and Fellowship, and the
discharge from Fellowship. The Superior Court deferred sentencing, stating “[w]e’ll
hear sentencing comments on this again to be refreshed… because there’s been
acknowledgement of a violation with regard to positive screens, not attending
treatment.”2 On December 21, 2017, Scarborough admitted he tested positive for
2
Motion to Affirm, Exhibit L at 9.
3
drugs, but stated that he went to Fellowship. He opposed the recommendation of
Key/Crest made by his probation officer and TASC. The Superior Court found that
Scarborough had violated his probation and sentenced him as follows: (i) for Drug
Dealing (Tier 2), effective November 9, 2017, eleven years and eleven months of
Level V incarceration, suspended after successful completion of the Key program,
followed by one year of Level IV Crest, suspended after successful completion for
one year of Level III Crest Aftercare; and (ii) for Drug Dealing, seven years of Level
V incarceration, suspended for one year of Level III Crest. This appeal followed.
(7) In his opening brief on appeal, Scarborough argues that: (i) there was
no competent evidence to support his VOP and VOP sentence; (ii) the reason for his
VOP (discharge from Fellowship) did not appear in the warrant; and (iii) the
probation officer’s sentence recommendation was biased. Scarborough did not raise
these claims below so we review for plain error.3 “Under the plain error standard of
review, the error complained of must be so clearly prejudicial to substantial rights
as to jeopardize the fairness and integrity of the trial process.”4 There is no plain
error here.
(8) In a VOP hearing, unlike a criminal trial, the State is only required to
prove by a preponderance of the evidence that the defendant violated the terms of
3
Supr. Ct. R. 8.
4
Wainwright v. State, 504 A.2d 1096, 1100 (Del. Feb. 21, 1986).
4
probation.5 A preponderance of the evidence means “some competent evidence” to
prove the violation asserted.6 At the December 15, 2017 hearing, Scarborough’s
counsel informed the Superior Court that Scarborough admitted the violations for
positive drug screens, missed appointments with TASC and Fellowship, and the
discharge from Fellowship. At the December 21, 2017 hearing, Scarborough stated
that he went to Fellowship, but did not otherwise dispute the violations.
Scarborough’s admissions constituted sufficient competent evidence to revoke
Scarborough’s probation.7
(9) As to Scarborough’s contention that the warrant did not refer to his
discharge from Fellowship, the warrant did refer to his positive drug tests and failure
to report to TASC. The violation of probation report, which did refer to
Scarborough’s discharge from Fellowship for failure to attend meetings, was filed
approximately six weeks before the December 15, 2017 hearing. Scarborough had
sufficient notice of the grounds, including his discharge from Fellowship, for his
alleged violations of probation.
(10) Finally, Scarborough claims that the probation officer’s sentencing
recommendation was biased because it did not change after the Superior Court
indicated that it would not consider the new criminal charges. This Court’s appellate
5
Kurzmann v. State, 903 A.2d 702, 716 (Del. 2006).
6
Brown v. State, 249 A.2d 269, 272 (Del. 1968).
7
Collins v. State, 897 A.2d 159, 161 (Del. 2006).
5
review of a sentence is extremely limited and generally ends upon a determination
that the sentence is within statutory limits.8 Once Scarborough committed a VOP,
the Superior Court could impose any period of incarceration up to and including the
balance of the Level V time remaining on Scarborough’s sentences.9 The Level V
sentence imposed by the Superior Court after Scarborough’s VOP did not exceed
the Level V time previously suspended and was within statutory limits.
(11) The record reflects that the probation officer and TASC were concerned
by Scarborough’s repeated failure to comply with the no drug conditions of his
sentence and probation. This concern was valid even if the new criminal charges
were not considered. Scarborough has not shown plain error.
NOW, THEREFORE, IT IS ORDERED that the motion to affirm is
GRANTED and the judgment of the Superior Court is AFFIRMED.
BY THE COURT:
/s/ Collins J. Seitz, Jr.
Justice
8
Kurzmann, 903 A.2d at 714.
9
11 Del. C. § 4334(c); Pavulak v. State, 880 A.2d 1044, 1046 (Del. 2005).
6