James R. BUNGY, Defendant Below-Appellant,
STATE of Delaware, Plaintiff Below-Appellee.
Submitted: Sept. 20, 2013.
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. 1104022301.
Before STEELE, Chief Justice, HOLLAND and RIDGELY, Justices.
MYRON T. STEELE, Chief Justice.
This 21st day of October 2013, upon consideration of the briefs on appeal and the record below, it appears to the Court that:
(1) The defendant-appellant, James R. Bungy, filed an appeal from the Superior Court's April 24, 2013 violation of probation (" VOP" ) sentencing order. We find no merit to the appeal. Accordingly, we affirm.
(2) The record before us reflects that, in January 2012, Bungy pleaded guilty to Possession of Cocaine Within 1000 Feet of a School and Possession of Cocaine Within 300 Feet of a Park. On the first conviction, he was sentenced to 10 years of Level V incarceration, to be suspended after 49 days, for 18 months of Level III probation. On the second conviction, he was sentenced to 10 years at Level V, to be suspended for 18 months of concurrent Level III probation.
(3) On April 18, 2012, Bungy was found to have committed a VOP. He was re-sentenced to 10 years at Level V, with credit for 49 days previously served, to be suspended after 18 days for 18 months at Level IV Crest, in turn to be suspended upon successful completion of the Crest Program, with the balance of his sentence to be served at Level III probation. Bungy's subsequent motion for sentence modification was denied by the Superior Court on October 1, 2012.
(4) On April 24, 2013, Bungy again was found to be in violation of his probation at a contested VOP hearing at which he was represented by counsel. He was re-sentenced to 10 years at Level V, with credit for 67 days previously served, to be suspended after 1 year for 18 months at Level III probation. This appeal followed.
(5) In his appeal, Bungy claims that a) the prosecutor engaged in misconduct during his VOP hearing, tainting the proceedings; b) the Superior Court improperly relied on the testimony of a lay witness in finding that he had committed a VOP; and c) the Superior Court judge acted with a " closed mind" when he imposed the VOP sentence.
(6) The transcript of the April 24, 2013 contested VOP hearing reflects that, at the time of the VOP, Bungy was being housed at the VOP Center. A correctional officer, a watch commander and a senior probation officer testified about an incident that occurred there during the evening of March 26, 2013. The correctional officer testified that, on March 27, 2013, an inmate who resided in the same housing pod as Bungy reported that he had fallen and hit his head in the bathroom the night before. The correctional officer observed a laceration on the inmate's head and took him to get medical attention. Several minutes later, Bungy approached the correctional officer and reported that his hand was swollen from punching a wall in the bathroom the night before. He also was taken to get medical attention.
(7) The watch commander at the VOP Center testified that she interviewed both Bungy and the other inmate about their injuries. Bungy reiterated that he had punched a wall in the bathroom, but the other inmate changed his story. He reported that he had actually been assaulted by Bungy, and possibly others, in the bathroom and had been knocked unconscious. He reported ...