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Anderson v. State

Supreme Court of Delaware

September 25, 2013

Harry W. ANDERSON, Defendant Below-Appellant,
v.
STATE of Delaware, Plaintiff Below-Appellee.

Submitted: Aug. 16, 2013.

Reargument Denied Oct. 15, 2013.

Editorial Note:

This decision has been designated as "Table of Decisions Without Published Opinions." in the Atlantic Reporter.

Court Below— Superior Court of the State of Delaware in and for New Castle County, Cr. ID No. 0511001605.

Before STEELE, Chief Justice, JACOBS and RIDGELY, Justices.

ORDER

HENRY DuPONT RIDGELY, Justice.

This 25th day of September 2013, upon consideration of the briefs of the parties and the record below, it appears to the Court that:

(1) The defendant-appellant, Harry W. Anderson, filed an appeal from the Superior Court's January 30, 2013 violation of probation (" VOP" ) sentencing order. For the reasons that follow, this matter will be remanded to the Superior Court for the sole purpose of correcting a calculation error in Anderson's VOP sentencing order. In all other respects, the Superior Court's judgment is affirmed.

(2) The record before us reflects that, in December 2005, Anderson was indicted on charges of Possession of a Deadly Weapon During the Commission of a Felony, Assault in the Second Degree, two counts of Reckless Endangering in the First Degree, Receiving Stolen Property and Resisting Arrest. On March 6, 2006, Anderson pleaded guilty to Assault in the Second Degree. The remaining charges were dismissed. Anderson was sentenced to 8 years of Level V incarceration, with credit for 167 days of Level V time served, to be suspended after 1 year for 2 years of Level III probation.

(3) On March 9, 2007, Anderson was found to have committed a VOP. He was re-sentenced to 6 and 1/2 years at Level V, to be suspended upon completion of TASC evaluation for 2 years of Level IV Home Confinement, in turn to be suspended after 6 months for Level III probation.[1] On November 21, 2007, Anderson was found to have committed a second VOP. He was resentenced to 6 years at Level V, to be suspended for 6 years at Level IV Work Release, in turn to be suspended after 6 months for 2 years of Level III probation. [2]

On September 22, 2010, Anderson was found to have committed a third VOP. He was re-sentenced to 6 years at Level V, to be suspended after 1 year and 1 month for 6 months at Level IV, to be followed by 12 months of Level III probation.[3] On January 30, 2013, Anderson was found to have committed his fourth VOP. He was re-sentenced to 6 years at Level V, with credit for 1 year and 62 days previously served, to be suspended after 4 years for 6 months at Level II probation. This appeal followed.

(5) In his appeal, Anderson claims that a) the Superior Court relied on unproven criminal conduct to find him in violation of his probation; b) he was not provided with the minimum requirements of due process at the VOP hearing; c) the Superior Court imposed a sentence in excess of that recommended by the SENTAC guidelines; d) his sentence to 4 years at Level V was improper; and e) the Superior Court miscalculated the amount of Level V time remaining on his original Level V sentence.

(6) Anderson's first claim is that the Superior Court relied on unproven criminal conduct to find him in violation of his probation. A guilty plea to criminal charges that are the basis for a VOP renders moot any challenge to the sufficiency of the evidence at the VOP hearing.[4] The record in this case reflects that Anderson entered a plea of guilty to 2 counts of Burglary in the Third Degree on January 24, 2013. The transcript of the VOP hearing on January 30, 2013 reflects that Anderson's probation officer informed the judge that Anderson had pleaded guilty to those charges. As ...


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