MICHAEL N. LOPEZ, Defendant Below-Appellant,
STATE OF DELAWARE, Plaintiff Below-Appellee
Submitted May 20, 2014
Case Closed July 11, 2014.
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 Sussex County. Nos. 0808030106 & 0704020877A.
Before STRINE, Chief Justice, BERGER, and RIDGELY, Justices.
Henry duPont Ridgely, Justice
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. 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 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.
(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 program for continued treatment and supervision at decreasing levels of ...