Lopez v. State

IN THE SUPREME COURT OF THE STATE OF DELAWARE
MICHAEL N. LOPEZ, §
§ No. 606, 2013
Defendant Below- §
Appellant, §
§ Court Below: Superior Court
v. § of the State of Delaware,
§ in and for Sussex County
STATE OF DELAWARE, §
§ Nos. 0808030106 & 0704020877A
Plaintiff Below- §
Appellee. §
Submitted: May 20, 2014
Decided: June 25, 2014
Before STRINE, Chief Justice, BERGER, and RIDGELY, Justices.
ORDER
On this 25th day of June 2014, it appears to the Court that:
(1) Defendant-Below/Appellant Michael N. Lopez appeals from a Violation
of Probation conviction in the Superior Court. Lopez essentially raises five claims
on appeal.1 First, Lopez contends that the Superior Court violated his due process
rights when it revoked his probation based on uncharged crimes to which he did
not admit. Second, Lopez claims that his conviction violated Delaware law
because his written notice of violation did not include the uncharged crimes.
Third, Lopez argues that the trial judge was biased, undermining Lopez’s right to a
1
Lopez’s Opening Brief includes six claims. But the first and third claims relate to the due
process rights of a probationer in a revocation of probation hearing under the United States and
Delaware Constitutions. Because these two claims are substantively equivalent, they will be
considered as one.
hearing before a neutral and impartial arbiter. Fourth, Lopez contends that the trial
judge abused his discretion when he relied on impermissible factors, thus
exhibiting a closed mind. And finally, Lopez claims that there was insufficient
evidence to support a finding that he violated his probation by a preponderance of
the evidence. We find that all of Lopez’s arguments lack merit. Accordingly, we
affirm.
(2) In 2008, Lopez was convicted of aggravated menacing, endangering the
welfare of a child, trafficking cocaine, and possession of marijuana with the intent
to distribute. He completed the Level V and IV portions of his sentence, was
released on probation, and obtained approval to transfer his probation to
Pennsylvania.
(3) In March 2012, Probation and Parole requested an administrative
warrant for Lopez based on traffic charges, an arrest for Driving Under the
Influence (DUI), a urine analysis that tested positive for drugs, and absconding
from probation, with a hearing to be held upon his apprehension. In April 2013,
Lopez was arrested in New Castle County, where he was found with more than
fifty grams of heroin in a backpack (the “April Arrest”). The State later entered a
nolle prosequi on the charges stemming from the April Arrest, citing prosecutorial
merit. Lopez was convicted of the DUI charge on May 2, 2013.
2
(4) The trial court scheduled Lopez’s Violation of Probation Hearing (“VOP
Hearing”) for September 19, 2013. The charged violations were the arrest for
DUI, the positive urinalysis, and absconding from probation. After the trial court
placed the VOP Hearing on its schedule, Probation and Parole filed a supplemental
report noting that Lopez had been convicted of the DUI charge. The supplemental
report also informed the trial court of the April Arrest and its subsequent
disposition. This report did not charge Lopez with a probation violation for the
April Arrest. At the hearing on September 19, 2013, Lopez admitted to the
violation of probation for the DUI, for the drug test, and for absconding. Lopez
did not admit to the events of the April Arrest. The trial court revoked Lopez’s
probation and deferred sentencing. The sentencing was delayed twice so that the
State could provide testimony relating to Lopez’s April Arrest. To facilitate this
testimony, court personnel emailed the Attorney General’s Office to arrange the
schedule of the arresting officer with the court’s calendar.
(5) On October 18, 2013, the trial court held a hearing where the arresting
officer testified about the April Arrest. At the conclusion of the hearing, the trial
court sentenced Lopez on his original charges as follows: possession of marijuana
– five years at Level V (to be served pursuant to 11 Del. C. § 4204(k)); trafficking
in cocaine – six years at Level V with credit for 178 days; aggravated menacing –
five years at Level V, suspended after successful completion of a drug treatment
3
program for continued treatment and supervision at decreasing levels of
supervision. The trial court discharged Lopez as unimproved from his probation
for the charge of endangering the welfare of a child. This appeal followed.
(6) This Court reviews the Superior Court’s revocation of probation for an
abuse of discretion and constitutional violations de novo.2 But because Lopez
failed to object to any of the alleged errors in the proceeding below, our review is
for plain error.3 Under the plain error standard, “the error complained of must be
so clearly prejudicial to substantial rights as to jeopardize the fairness and integrity
of the trial process.”4 “Further, we find plain error only for ‘material defects which
are apparent on the face of the record[,] which are basic, serious and fundamental
in their character, and which clearly deprive an accused of a substantial right, or
which show manifest injustice.’”5 Our review of a trial judge’s revocation of
probation and corresponding sentence, however, is for an abuse of discretion.6
(7) A defendant accused of violating probation “is not entitled to a formal
trial.”7 But a probationer is entitled to the “minimum requirements of due process”
2
Cruz v. State, 990 A.2d 409, 412 (Del. 2010) (citing Kurzmann v. State, 903 A.2d 702, 716
(Del. 2006)).
3
See id. (citing Supr. Ct. R. 8).
4
Baker v. State, 906 A.2d 139, 150 (Del. 2006) (quoting Wainwright v. State, 504 A.2d 1096,
1100 (Del. 1986)).
5
Whittle v. State, 77 A.3d 239, 243 (Del. 2013) (alteration in original) (quoting Wainwright, 504
A.2d at 1100).
6
Walt v. State, 727 A.2d 836, 840 (Del. 1999) (citing Mayes v. State, 604 A.2d 839, 842–43
(Del. 1992)); Brown v. State, 249 A.2d 269, 271–72 (Del. 1968).
7
Philhower v. State, 882 A.2d 762, 2005 WL 2475716, at *1 (Del. 2005) (citing 11 Del. C.
§ 4334(c)).
4
in a proceeding to determine whether a probation violation has occurred.8
Delaware Superior Court Criminal Rule 32.1 provides that a defendant is entitled
to a prompt hearing and shall be given (1) “[w]ritten notice of the alleged
violation,” (2) “[d]isclosure of the evidence against the person,” (3) “[a]n
opportunity to appear and to present evidence in the person’s own behalf,”
(4) “[t]he opportunity to question adverse witnesses,” and (5) “[n]otice of the
person’s right to retain counsel and, in cases in which fundamental fairness
requires, to the assignment of counsel if the person is unable to obtain counsel.”9
(8) Lopez first contends that the trial court committed plain error when it
considered the uncharged April Arrest, even though this crime was not included in
the State’s written notice of alleged violations, and assumed that he admitted to the
facts of the April Arrest. Lopez claims that this was a violation of his due process
rights. Lopez does not claim, however, that the State withheld written notice of the
three violations with which he was charged or other evidence against him. Rather,
Lopez contends that the trial court should not have considered uncharged crimes
evidence during his VOP Hearing.
(9) Lopez was on put on notice at his initial hearing that the trial court
intended to inquire into the April Arrest, and a separate hearing was scheduled for
that specific purpose where both the arresting officer and Lopez would be heard.
8
Gagnon v. Scarpelli, 411 U.S. 778, 786 (1973) (quoting Morrissey v. Brewer, 408 U.S. 471,
489 (1972)).
9
Super. Ct. Crim. R. 32.1(a).
5
Lopez’s due process rights were respected by this procedure because the trial court
gave him specific notice that the April Arrest would be the subject of the next
hearing and gave Lopez an opportunity to address the April Arrest at that hearing.
Although it would have been ideal if the State had formally amended the charges
to include the April Arrest, the Superior Court’s on-the-record notice to Lopez that
the April Arrest would be an alleged violation to be considered at the later hearing
satisfied Lopez’s legitimate expectations under Superior Court Rule 32.1. In fact,
at the initial hearing, the Superior Court specifically gave its copy of the
supplemental report discussing the April Arrest to defense counsel and continued
the hearing so that defense counsel had time to review the report and prepare a
defense.10 Furthermore, to the extent that Lopez claims that his due process rights
were violated because the circumstances of the April Arrest were not presented at
the later hearing in the same manner they would have been at a trial, that claim
fails because this Court has repeatedly held that the formal rules of evidence are
inapplicable to a VOP hearing.11 Accordingly, the trial court’s consideration of the
uncharged April Arrest is not a due process violation.
(10) For similar reasons, the trial court’s consideration of the April Arrest
also did not violate 11 Del. C. § 4334(c). Section 4334(c) provides that the State
10
Appellant’s Op. Br. Appendix at A36–37.
11
E.g., McDougal v. State, 31 A.3d 76, 2011 WL 4921345, at *2 (Del. 2011); Jenkins v. State,
862 A.2d 386, 2004 WL 2743556, at *2 (Del. 2004); Brewington v. State, 797 A.2d 1206, 2002
WL 1038830, at *2 (Del. 2002).
6
“shall immediately notify the court and shall submit in writing a report showing in
what manner the probationer has violated the conditions of probation or suspension
of sentence” upon arrest and detention.12 Lopez argues that the State’s failure to
include the April Arrest in the written notification of his charges violated Section
4334(c). But the State did not charge him with a violation related to the April
Arrest. Moreover, Lopez was on notice that the trial court intended to hear
testimony about the April Arrest.
(11) Lopez next claims that the trial judge was biased, which undermined
his right to a hearing before a neutral and impartial arbiter. A probationer is
entitled to have “a ‘neutral and detached’ hearing body.”13 This Court has
explained that judicial disqualification is obligatory where “the impartiality of the
judge might reasonably be questioned, including instances in which the judge ‘has
a personal bias or prejudice concerning a party.’”14
(12) Lopez claims that the trial judge was biased, or at least had the
appearance of bias, because he expressed a desire to consider the April Arrest and
requested that the State provide testimony from the arresting officer about the
matter. Lopez also points to the fact that the trial judge conducted direct
examination of the arresting officer and did not solicit input or recommendations
12
11 Del. C. § 4334(c).
13
Gagnon , 411 U.S. at 786 (quoting Morrissey, 408 U.S. at 489).
14
Weber v. State, 547 A.2d 948, 952 (Del. 1988) (quoting Del. Judges’ Code of Judicial Conduct
Canon 3C(1) (1987) (current version at R. 2.11(A)(1) (2008))).
7
from the prosecutor or probation officer. This complained-of activity fails to
demonstrate that the trial judge was not neutral or detached. Nor does it otherwise
suggest that the trial judge’s impartiality can reasonably be questioned. Rather, the
record shows a trial judge who was concerned with understanding the facts and
wanted additional information before deciding on an appropriate sentence. Thus,
the trial judge was under no obligation to recuse himself sua sponte, and a refusal
to do so did not amount to plain error.
(13) Lopez also notes that court personnel communicated with the Attorney
General’s Office by email and did not copy defense counsel. Lopez contends that
this communication creates the appearance of judicial impropriety. Judicial staff
members often have to communicate with parties to arrange schedules, as they did
here. Although staff should endeavor to copy all parties when performing even
routine scheduling functions, that does not always happen. But the mere fact that it
does not on a particular occasion does not mean that a party who was not copied on
such a communication has suffered any deprivation of a right or
prejudice. Without more than an indication that a staff member made an oversight
of no negative consequence to Lopez, Lopez’s judicial bias claim is without merit.
(14) In his fourth claim, Lopez contends that the trial judge abused his
discretion when he relied on impermissible factors and did not consider the State’s
recommendations, thus exhibiting a closed mind. “Appellate review of a sentence
8
generally ends upon determination that the sentence is within the statutory limits
prescribed by the legislature.”15 Where a sentence is within the statutory limits,
“this Court will not find error of law or abuse of discretion unless it is clear from
the record below that a sentence has been imposed on the basis of demonstrably
false information or information lacking a minimal indicium of reliability,”16 or “it
is clear that the sentencing judge relied on impermissible factors or exhibited a
closed mind.”17 “The Superior Court is not obligated to follow a sentencing
recommendation made by a probation officer.”18
(15) Lopez concedes that his sentence was within the statutory guidelines.19
Thus, our review is only to determine whether there was a consideration of
impermissible evidence or factors evincing a closed mind on the part of the trial
judge. Many of the factors that Lopez contends demonstrate the trial judge’s
closed mind are the same factors that he alleges form the basis for his other
claims—considering the April Arrest, failing to solicit recommendations from the
prosecutor or the probation officer, arranging for the arresting officer to testify, and
assuming that Lopez admitted to the crimes for the April Arrest. But Lopez also
15
Walt, 727 A.2d at 840 (quoting Mayes, 604 A.2d at 842).
16
Id. (quoting Mayes, 604 A.2d at 843).
17
Fink v. State, 817 A.2d 781, 790 (Del. 2003) (citing Cheeks v. State, 768 A.2d 467, 2000 WL
1508578, at *2 (Del. 2000)).
18
Odom v. State, 53 A.3d 302, 2012 WL 3656367, at *1 (Del. 2012).
19
See Appellant’s Op. Br. at 26 (complaining that the trial judge imposed “the maximum
permissible jail sentence” on Lopez).
9
points to the trial judge’s statement that even though the April Arrest was “[n]olle
prossed,” Lopez is not entitled to “walk.”20
(16) Lopez also was provided with advance notice of the evidence about the
April Arrest, and he had an opportunity to contest it at the hearing. The trial
judge’s conduct during the hearing and his consideration of the April Arrest do not
reflect a closed mind or amount to an abuse of discretion. Nor was the trial judge’s
failure to consider or solicit the recommendations of the prosecutor or the
probation officer an abuse of discretion because there is no requirement that the
trial judge do so. Thus, Lopez’s fourth claim lacks merit.
(17) Finally, Lopez claims that the State’s evidence was insufficient to
support a revocation of his probation by a preponderance of the evidence. This
Court has explained that “probation is an ‘act of grace,’” and “revocation of
probation is an exercise of broad discretionary power.”21 “All that is required is
that the evidence and facts be such as to reasonably satisfy the judge that the
conduct of the probationer has not been as good as required by the conditions of
probation.”22 “[A] probation revocation may not stand unless there be some
competent evidence to prove the violation asserted.”23
20
Appellant’s Op. Br. Appendix at A30.
21
Brown, 249 A.2d at 271.
22
Id. at 272.
23
Id.
10
(18) In this case, there is sufficient competent evidence to show that a
probation violation occurred. Lopez admitted that he violated his probation based
on the evidence of a DUI conviction, positive urine tests, and absconding from
probation. He only contends that the evidence of the April Arrest is insufficient to
support a finding that he violated his probation. Even if every reference to the
April Arrest is set aside, the violations to which Lopez admitted are more than
sufficient evidence to support the trial court’s finding that Lopez violated his
probation. The record likewise does not support Lopez’s argument that he was
convicted solely on the uncharged April Arrest at the VOP Hearing. Because we
need only find “some competent evidence,” Lopez’s argument lacks merit.
NOW, THEREFORE, IT IS ORDERED that the judgment of the Superior
Court is AFFIRMED.
BY THE COURT:
/s/ Henry duPont Ridgely
Justice
11