State v. Lewis ( 2020 )

IN THE SUPERIOR COURT OF THE STATE OF DELAWARE
STATE OF DELAWARE )
)
v. ) No. 1909006789
)
LAVAR LEWIS, )
)
Defendant. )
Submitted: August 19, 2020
Decided: November 9, 2020
ORDER
Upon Review of Lavar Lewis’ Motion for
Review of Commissioner’s Order- Affirmed
Defendant Lavar Lewis was indicted in this Court for robbery and related
criminal charges. After Lewis was detained in default of bail, he filed a motion that,
among other things, challenged the constitutionality of Delaware’s bail statute.
While the motion was pending, Lewis’s bail was reduced, he posted a bond, and he
was released from detention. Consequently, the Superior Court Commissioner
assigned to hear Lewis’s motion denied it as moot.
Lewis asks this Court to review the Commissioner’s order, arguing the public
interest exception to the mootness doctrine should be applied so the Court may
consider the merits of Lewis’s argument. Lewis also challenges the Commissioner’s
order on the grounds that it violated his right to due process and his right to counsel.
Lewis’s motion requires the Court to determine whether (i) the issue of the bail
1
statute’s constitutionality evades review; (ii) due process required the Commissioner
to hold oral argument in this case; and (iii) the absence of oral argument denied
defense counsel the opportunity to advocate for Lewis. For the reasons that follow,
the Commissioner’s order is affirmed.
FACTUAL & PROCEDURAL BACKGROUND
1. On September 11, 2019, Defendant Lavar Lewis was arrested and
charged with Robbery First Degree, Wearing a Disguise, and Misdemeanor Theft. 1
Lewis allegedly robbed a Burger King restaurant while wearing a face covering and
displaying what appeared to be a hand gun. 2 A witness identified Lewis as the
perpetrator; this identification later was supported by witness statements and video
surveillance.3 Following his arrest, police officers executed a search warrant on
Lewis’s home and found $1,181.00 in cash along with two BB guns that appeared
to match the gun seen in surveillance footage of the incident.4
2. Lewis was presented to the Justice of the Peace Court, and a Magistrate
set bail at $27,000.00 cash along with conditions for supervised release. 5 Lewis was
detained in default of bail.6 After conferring with counsel, Lewis waived his right
1
Comm’r Order at 1.
2
Id.
3
Id.
4
Id. at 1-2.
5
Id. at 2.
6
Id.
2
to a preliminary hearing in the Court of Common Pleas on September 18, 2019.7
Lewis also waived his right to a bail hearing at that time, and his bail remained set
at $27,000.8
3. After Lewis’s case was accepted in this Court, his counsel filed a
Motion for Reduction of Bail (the “Bail Motion”). 9 Lewis’s Bail Motion raised a
number of arguments, including that Delaware’s bail statute is unconstitutional. 10
On December 4, 2019, the Court held a hearing on Lewis’s arguments other than the
arguments regarding constitutionality and denied the request to modify bail, finding
the bail was reasonable and appropriate under the circumstances. 11 The Court
ordered briefing on the constitutional issues raised in the Bail Motion.12
4. On March 17, 2020, after he had pleaded guilty and while he was
awaiting sentencing, Lewis’s bail was reduced to $20,000 secured. Lewis then
posted bail and was released from custody. 13 On May 14, 2020, the Commissioner
issued an Order (“the Order”), denying Lewis’s Bail Motion as moot.14 The
7
Id.
8
Id.
9
Id.
10
Id. at 2-3.
11
Id. at 3.
12
Id. at 4.
13
Id. at 5-6. The commissioner who reduced Lewis’s bail on March 17th was not the
commissioner who was considering his Bail Motion discussed above. It does not appear that
Lewis’s counsel advised the commissioner who was considering the March 17 th motion that
another bail motion already was pending before another commissioner.
14
Id. at 13-15.
3
Commissioner reasoned that, because his bail was reduced and he was not detained,
Lewis had obtained the relief he sought and there no longer was a live controversy. 15
On May 22, 2020, Lewis filed this Motion for Review of the Commissioner’s Order.
In his Motion for Review, Lewis argues the Commissioner should have applied the
public interest exception to mootness.16 Lewis also contends the Order violated his
rights to due process and counsel. 17 The State argues the bail issue is moot because
Lewis obtained the reduced bail he sought.18 The State also asserts Lewis was
afforded adequate due process, and he waived his argument regarding the Sixth
Amendment by failing to cite any supporting case law.19
ANALYSIS
5. The parties dispute the standard of review applicable to this Court’s
review of the Commissioner’s Order. The State maintains that, as a decision to
modify bail, the Order should be reviewed under the clear error standard.20 Lewis,
15
Id.
16
Lewis argued to the Commissioner that the Bail Motion was not moot because it raised an issue
of public interest that would arise in the future but continually evade review. See Def.’s Mot., Ex.
B, 7-18. In Lewis’s Motion for Review, he argued the Commissioner erred in concluding the issue
would not evade review in the future. Def.’s Mot. at 4-16. In his reply brief, however, Lewis
argued for the first time that the Court need not consider the “evade review” question because the
public interest exception to the mootness doctrine does not require such a finding. The Court finds
that Defendant waived the argument that “evading review” is not a necessary element to the public
interest exception by failing to raise that issue in a timely manner before the Commissioner or in
his Motion for Review. And, in any event, Delaware precedent requires a finding that an issue
will evade review before the public interest exception to mootness will apply. See n.27, infra.
17
Id. at 16-17.
18
State’s Resp. at 14.
19
Id. at 13-20.
20
Id. at 7 (citing State v. Perkins, 2004 WL 1172894, AT *1 (Del. Super. May 21, 2004)).
4
however, argues he is asserting claims of legal error that should be reviewed de
novo.21 The State is correct that “a commissioner’s decision to modify bail is entitled
to deference under the law of the case doctrine.”22 The Order, however, did not
reach the merits of the bail issue. 23 In an appeal, this Court reviews questions of law
de novo and reviews questions of fact under the “substantial evidence” standard. 24
Mootness and the other constitutional issues presented by this case are questions of
law, so the Court has reviewed the Order de novo.
I. The Commissioner correctly determined the bail issue is moot.
6. “Mootness arises when controversy between the parties no longer
exists such that a court can no longer grant relief in the matter.” 25 A court’s function
is to consider live controversies, and for that reason courts generally will not
consider issues that become moot before the court issues its decision.26
7. The public interest exception to the mootness doctrine applies when a
case raises a question of public importance but that question is likely to evade
review.27 The parties dispute how the “evades review” element should be analyzed.
Lewis argues that a case evades review when the controversy resolves before the
21
Def.’s Reply at 2.
22
State v. Perkins, 2004 WL 1172894, at *1 (2004).
23
Comm’r Order at 13-16.
24
Rittenour v. Astropower, Inc., 2005 WL 4051539, at *1 (Del. Super. Dec. 29, 2005).
25
Mentor Graphics Corp. v. Shapiro, 818 A.2d 959, 963 (Del. 2003).
26
State Farm Mut. Auto. Ins. Co. v. Davis, 80 A.3d 628, 632 (Del. 2013).
27
Wooten v. State, 2003 WL 22866416, at *1 (Del. Nov. 24, 2003) (citing Radulski v. Delaware
State Hosp., 541 A.2d 562, 566 (Del. 1988)).
5
case proceeds through the entire course of litigation, including appeal to the
Delaware Supreme Court. The State, however, asserts the proper question is
whether the matter would evade review before this Court.
8. Lewis is correct that, when considering if an issue will “evade review,”
the Court must assess whether the case could be subjected to full appellate review
before becoming moot. When applying the public interest exception, courts
implicitly have analyzed whether complete appellate review of an issue is possible.
In Sosna v. Iowa, the appellant filed a class action challenging the constitutionality
of a one-year residency requirement for filing a divorce petition. 28 While the
litigation was proceeding, the one-year residency period elapsed for the appellant.29
The United States Supreme Court pointed out this was not surprising because “in
many cases, appellate review [would] not be completed until after the plaintiff ha[d]
satisfied the residency requirement.” 30 The court ruled the case was not moot
because a controversy still might exist as to some members of the class.31 Similarly,
in Smith v. State, the Delaware Supreme Court was asked to review an involuntary
commitment order after the appellant already had been released.32 The appellant
argued the court should apply the public interest exception because an involuntary
28
Sosna v. Iowa, 419 U.S. 393, 395-96 (1975).
29
Id. at 399.
30
Id. at 398 (emphasis added).
31
Id. at 402.
32
Smith v. State, 2018 WL 6202281, at *1 (Del. Nov. 28, 2018).
6
commitment order typically expires after three months, which does not give the
challenger time for full appellate review. 33 The court considered whether the issue
would evade full appellate review but determined it would not because proceedings
in this Court and the Supreme Court could be expedited when necessary. 34 Even
taking into account, however, the time necessary to pursue an appeal, the bail issue
will not evade review for the reasons set forth below. Accordingly, the public
interest exception does not apply, and Lewis’s bail challenge is moot.
A. This issue will not evade review in the future because superior
tribunal review is available through a writ of prohibition.
9. Lewis claims the bail statute’s constitutionality will continue to evade
review given the temporary nature of pretrial detention. Lewis points out a bail order
is interlocutory, and interlocutory appeals are prohibited in criminal cases.35 Lewis
argues that by the time a case can be appealed, a criminal defendant no longer will
be subject to pretrial detention. This argument is incorrect, however, because in
future cases, a criminal defendant could obtain review of a decision regarding the
constitutionality of the bail statute through a writ of prohibition. 36
33
Id. at *2.
34
Id.
35
Steigler v. Super. Ct., 252 A.2d 300, 302-03 (Del. 1969).
36
In a footnote, the Commissioner pointed out that, in addition to a writ of prohibition, “other
opportunities [for review] may be available.” Comm’r Order at 18, n.44. The Commissioner
specifically mentioned the possibility of a class action claim, an advisory opinion, or a writ of
certiorari. Lewis spends substantial time in his Motion for Review challenging the viability of
each of these options. But those arguments are themselves moot based on this Court’s finding that
a writ of prohibition would be available. The Court therefore need not consider those additional
arguments.
7
10. A writ of prohibition can be issued where a court lacks jurisdiction to
proceed because it violated a defendant’s constitutional rights and there is no
adequate remedy at law.37 In Steigler v. Superior Court, the Delaware Supreme
Court held that a direct appeal for a bail order was not possible because it would be
an impermissible interlocutory appeal.38 The Court, however, ruled that a
constitutional challenge to a bail order is one situation where a writ of prohibition is
appropriate:
In the instant case…we have held that there is no right of appeal to this
Court from an order denying bail. There is, therefore, no adequate
remedy at law to review such an order and [a writ of] prohibition will
lie to bar the lower Court from proceeding thereunder in violation of
the defendant’s fundamental constitutional rights. 39
Lewis argues Steigler is not controlling here, and this Court instead should apply
Hodson v. Superior Court.40 In Hodson, the appellant challenged his indictment,
asserting that the statute on which it was based was unconstitutional. 41 The
Delaware Supreme Court denied the defendant’s request for a writ of prohibition,
finding it was being used as a tool to evade the limitations on interlocutory appeal.42
37
Id. at 303.
38
Id. at 302-03 (citing Art. 4 Del. Const. s 11(1)(b)).
39
Id. at 303.
40
Def.’s Mot. at 9; Hodson v. Super. Ct., 239 A.2d 222 (Del. 1968).
41
Id. at 223-24.
42
Id. at 224.
8
The Hodson court determined that a writ of prohibition was not appropriate because
the Superior Court’s lack of jurisdiction was not apparent from the record.43
11. Lewis ignores the striking similarities between Steigler and this case.
The defendant in Steigler challenged his bail on the basis that it violated his
constitutional rights, which is precisely the argument Lewis makes here.44 Steigler
plainly establishes that a writ of prohibition is available to address constitutional
issues surrounding bail because the bar against interlocutory appeals otherwise
would cause the issue to evade review. There is no material distinction between this
case and Steigler, and other defendants seeking to challenge the constitutionality of
Delaware’s bail statute will have access to appellate review in the Delaware Supreme
Court through a writ of prohibition. Accordingly, the bail issue will not evade
review.
B. This issue is unlikely to evade review in the future because Lewis’s
own actions caused many of the delays in this case.
12. The Commissioner also held that Lewis’s own actions contributed to
the delays in the case, and future cases challenging the bail statute’s constitutionality
likely will benefit from “concise briefing and expeditious review,” allowing the issue
to be resolved before the underlying criminal charges are resolved. 45 The record
43
Id.44
Steigler, 252 A.2d at 302.
45
Comm’r Order at 17.
9
supports the Commissioner’s conclusion that Lewis created or exacerbated
numerous delays in the Bail Motion’s resolution. First, when Lewis filed his reply
in further support of his Bail Motion, he raised for the first time a due process
argument, which necessitated the State filing a Sur-Reply and prevented the Court
from considering that issue at the December 4th hearing.46 Second, on December
12, 2019, Lewis requested a continuance of the hearing date to allow for the
presentation of expert testimony; the Court then held a teleconference on December
30, 2019 to address the continuance request.47 The docket reflects a series of
communications between the Court and Lewis’s counsel in which Lewis’s counsel
sought further to delay a hearing on the bail motion. 48 Finally, on March 5, 2020,
Lewis filed another motion for reduction of bail that was granted on March 17,
2020.49 This had two effects: (i) Lewis posted bail and no longer was incarcerated;
and (ii) the parties then were required to submit additional briefing on whether the
bail issue was moot.50
13. This case is analogous to Radulski v. Delaware State Hospital, where
the Court declined to apply the public interest exception to an involuntary
commitment appeal.51 Although it acknowledged that involuntary commitment is
46
Comm’r Order at 4.
47
Id.48
D.I. #26-33, #15.
49
Comm’r Order at 5.
50
Id.51
Radulski, 541 A.2d at 566.
10
of a temporary nature, the Court concluded the issue would not evade review in
future cases because attorneys could take advantage of expedited scheduling under
Supreme Court Rule 25. 52 According to the Court, the delays that led to the issue
becoming moot entirely were attributable to the petitioner’s attorney: “[n]ot only did
counsel fail to avail themselves of [the] expedited procedure but they also sought
numerous time extensions that delayed the hearing of this appeal.”53 As in Radulski,
the defense slowed the Bail Motion’s resolution and appeal by seeking a continuance
and raising new issues that further compounded the delay. If future defendants seek
expedited review and avoid unnecessarily delaying litigation, there should be no
reason why the bail issue cannot be resolved before a defendant is released from
pretrial detention.
II. The Commissioner’s Order did not violate Lewis’s due process rights.54
14. Lewis next contends the Court should reverse the Order because the
proceedings before the Commissioner did not afford him adequate due process.
Lewis’s theory is that because the Commissioner ordered simultaneous briefing and
did not hold oral arguments on the mootness issue, Lewis was not given a reasonable
52
Id. (“[T]he issue presented by this appeal…is capable of repetition. However, such repetition
will not evade review if, in the future, attorneys utilize the procedures set forth in [the Supreme]
Court’s Rules.”).
53
Id.54
It is unclear if Lewis abandoned his due process claim. He did not address it in his reply brief,
despite discussing all other relevant issues. The Court nevertheless will address the due process
claim.
11
opportunity to respond to the State’s arguments or the Commissioner’s conclusions
regarding jurisdiction. The State, however, argues due process did not apply to the
proceedings because Lewis was not deprived of a protected liberty or property
interest. Nowhere in Lewis’s briefing does he identify any deprivation that would
entitle him to due process. “The requirements of procedural due process apply only
to the deprivation of interests encompassed by the Fourteenth Amendment’s
protection of liberty and property.”55 The list of protected interests is not infinite.56
Lewis was not deprived of a protected liberty or property interest; by the time the
Commissioner ordered briefing on the mootness issue, Lewis had posted the $20,000
modified bail and no longer was detained. He therefore was not facing any
deprivation of liberty or property and was not entitled to any procedural due process.
15. Even assuming arguendo that the Order deprived Lewis of some
protected interest, his due process rights were not violated by the Commissioner’s
decision to forego oral argument. “Due process is flexible and calls for such
procedural protections as the particular situation demands.” 57 Whether procedures
provide sufficient due process depends on three factors: “(1) the private interest that
will be affected by the official action; (2) the risk of an erroneous deprivation of such
interest through the procedures used…; and (3) the Government’s interest, including
55
Board of Regents of State College v. Roth, 408 U.S. 564, 570 (1972).
56
Id.57
Morrissey v. Brewer, 408 U.S. 471, 481 (1972).
12
the fiscal and administrative burdens that the additional or substitute procedures
would entail.”58 In assessing what process is due, “substantial weight must be given
to the good-faith judgments” of those persons who determined the challenged
procedures were adequate. 59 The United States Supreme Court explicitly has
acknowledged that due process does not require the Court to hear oral argument on
every question of law.60
16. The record demonstrates Lewis was afforded adequate due process. His
briefing to the Commissioner was drafted by counsel, an educated and licensed
attorney. Lewis’s counsel also orally discussed mootness with the Commissioner
and even corresponded with the Commissioner about particular case law he should
address. The State and defense counsel exchanged draft briefs before the filing
deadline, removing the possibility of any unfair surprise. Given the high level of
involvement from Lewis’s counsel and from the Commissioner, the risk of Lewis’s
rights erroneously being deprived was very low.
58
Matthews v. Eldridge, 424 U.S. 319, 321 (1976).
59
Id. at 349.
60
FCC v. WJR, 338 U.S. 265, 274-75 (1949) (“Taken at its literal and explicit import, the Court's
broad constitutional ruling cannot be sustained. So taken, it would require oral argument upon
every question of law…This would be regardless of whether the legal question were substantial or
insubstantial[.])” See also Del. Super. Ct. Crim. R. 57(d), Del. Super. Ct. Civ. R. 78(c).
13
III. The Commissioner’s Order did not violate Lewis’s Sixth Amendment
right to counsel.61
17. Lewis cites no facts supporting his Sixth Amendment argument. He
merely states, “counsel was not provided an opportunity to advocate for Defendant’s
position[.]”62 As discussed in the preceding section, there is no constitutional right
to oral argument. The Commissioner afforded Lewis’s counsel ample opportunity
to advocate Lewis’s position both in formal briefing and in email correspondence
with the Court. Further, Lewis has not introduced any facts or case law
demonstrating his right to counsel was violated. Reviewing the record at hand, this
argument has no merit.
For the reasons stated above, the Order of the Commissioner is AFFIRMED.
IT IS SO ORDERED.
/s/ Abigail M. LeGrow
Abigail M. LeGrow, Judge
61
It is unclear if Lewis abandoned his Sixth Amendment claim. He did not address the issue in
his reply brief, despite discussing all other relevant issues. Nevertheless, this Court will address
the Sixth Amendment argument.
62
Def.’s Mot. at 17.
14