Submitted: February 18, 2015.
Case Closed May 1, 2015.
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. No. 0606013407.
Before HOLLAND, VALIHURA, and VAUGHN, Justices.
James T. Vaughn Jr., Justice.
On this 15th Day of April 2015, it appears to the Court that:
(1) Plaintiff-below/Appellant State of Delaware appeals from a Superior Court order modifying the violation of probation sentence of Defendant-below/Appellee Daniel Diaz. The State raises one claim on appeal. The State contends that the Superior Court erred by failing to follow the plain language of Superior Court Criminal Rule 35(b), which in this case required a showing of extraordinary circumstances to justify modification of Diaz's sentence. We agree. We also find that Diaz's acquittal on charges that led to his violation of probation does not, in and of itself, constitute an extraordinary circumstance. For these reasons, we reverse.
(2) In December 2006, Diaz pled guilty to two counts of Robbery in the First Degree and one count of Robbery in the Second Degree. The Superior Court sentenced him in February 2007 to a total period of twelve years at Level V incarceration to be suspended after serving six years in prison, followed by decreasing levels of supervision. In April 2013, Diaz was arrested on a new criminal charge of Drug Dealing. As a result, he was charged with violating his probation for committing a new criminal offense, for leaving the State without authorization, and for being in possession of a controlled substance that was not legally prescribed.
(3) A contested violation of probation (" VOP" ) hearing was held on July 24, 2013. The State's evidence was presented through the testimony of Probation Officer Armando Gonzalez, Jr. and Detective Jeffrey Gliem of the Delaware State Police. The State's evidence established that the Delaware State Police had received information from a confidential informant (" CI" ) that Diaz was selling heroin in the Newark and New Castle areas. The CI told police that Diaz would re-supply his drugs by driving to Philadelphia in a silver Ford Taurus with Pennsylvania tags. The silver Ford previously had been observed by his probation officer parked outside Diaz's home.
(4) As a result of the CI's information, police made an undercover, controlled drug purchase from Diaz. They also obtained a warrant to place a GPS tracking device on the silver Ford. The monitoring device reflected Diaz leaving Delaware on three occasions. On the third occasion, police stopped his vehicle. After obtaining a warrant, police searched the car and found over 10,000 bags of heroin hidden in a secret compartment. At the conclusion of the State's evidence, Diaz did not contest that the State had established a basis for the VOP. The Superior Court immediately sentenced Diaz to a total of six years at Level V incarceration, which was all of the Level V time remaining to be served from his original sentence, followed by a six-month transition period of probation. On March 13, 2014, we affirmed the Superior Court's judgment in Diaz's direct appeal.
(5) In January 2014, Diaz was tried and acquitted of all charges stemming from his April 2013 arrest. On May 28, 2014, more than 10 months after he had been sentenced for violating his probation, Diaz filed a motion for modification of his VOP sentence. On June 2, 2014, without affording the State an opportunity to respond to Diaz's motion, the Superior Court granted the sentence modification, suspending all of the Level 5 time previously imposed for Level 4 Home Confinement followed by Level 3 probation.
(6) On June 27, 2014, the State filed a motion to vacate the Superior Court's order modifying Diaz's VOP sentence. The State's time to appeal from the Superior Court's order modifying Diaz's sentence expired on July 1, 2014. As of June 30, 2014, the Superior Court had not ruled on the State's motion to vacate. The State filed its notice of appeal ...