CHARLES W. PERNOT, Defendant Below, Appellant,
STATE OF DELAWARE, Plaintiff Below, Appellee.
Submitted: December 5, 2018
Below-Superior Court of the State of Delaware Cr. ID No.
STRINE, Chief Justice; SEITZ and TRAYNOR, Justices.
F. Traynor, Justice.
consideration of the appellant's opening brief, the
appellee's motion to affirm, the supplemental
submissions, and the record on appeal, it appears to the
appellant, Charles W. Pernot, filed this appeal from a
Superior Court order sentencing him for a violation of
probation ("VOP"). The State of Delaware has moved
to affirm the Superior Court's judgment on the ground
that it is manifest on the face of Pernot's opening brief
that the appeal is without merit. We agree and affirm.
record reflects that, on September 5, 2017, Pernot pleaded
guilty to Drug Dealing in exchange for the dismissal of other
drug-related charges. The Superior Court sentenced Pernot to
eight years of Level V incarceration, suspended for six
months of Level IV work release, followed by one year of
Level III probation. The sentencing order required Pernot to
be evaluated for substance abuse and follow any treatment
recommendations. Pernot was to be evaluated and monitored by
the Treatment Access Center ("TASC").
January 22, 2018, an administrative warrant was filed for
Pernot's VOP. The VOP report alleged that Pernot violated
the terms of his probation and Morris Community Center
regulations by possessing contraband, including two bags of
synthetic marijuana, and sexually harassing a female
counselor. After a VOP hearing on February 12, 2018, the
Superior Court found that Pernot had violated his probation.
The Superior Court sentenced Pernot to seven years and eleven
months of Level V incarceration suspended after successful
completion of the Transitions program and Level V Key Crest,
followed by one year of Level IV Crest and one year of Level
III aftercare. This appeal followed.
his opening brief on appeal, Pernot argues that: (i) the
Superior Court erred in denying his request for a transcript
of the VOP hearing at State expense; (ii) his counsel at the
VOP hearing was ineffective; (iii) the TASC worker falsely
stated at the VOP hearing that he admitted to using cocaine
in December 2017 and that he had not dealt with his substance
abuse issues; and (iii) the probation officer had no basis to
recommend that he complete the Transitions program, which was
longer than indicated at the VOP hearing. Pernot's claims
regarding the transcript are moot because this Court ordered
preparation of the transcript. Pernot received a copy of the
transcript and filed a supplemental opening brief. In his
supplemental opening brief, Pernot argues that the transcript
supports his claims. He is mistaken.
transcript reflects that Pernot did not dispute that he
violated his probation by possessing contraband, he
understood that his probation officer recommended completion
of the Transitions program, and he agreed to complete the
Transitions program. Pernot objected to the Key Crest
program, stating that he had already done the program and had
not used drugs since 2009. Pernot claims that the TASC worker
falsely stated that he admitted to using drugs in December
2017, but in fact she stated that he had previously admitted
to using drugs as late as December 2016. The Superior Court,
as the trier of fact, was responsible for determining witness
credibility and resolving any conflicts in the
testimony. The record does not reflect any error
or abuse of discretion by the Superior Court judge in finding
the TASC worker was more credible than Pernot.
to the length of the Transitions program, the transcript of
the VOP hearing reflects that the probation officer was not
sure how long it would take to complete the program, but
thought it might take less than a year. Pernot's counsel
informed the Superior Court that there was a significant
waiting period to enter the program. To the extent Pernot
claims that the Superior Court ordered him to complete the
Transitions program under the mistaken belief that he would
only need to spend a year at Level V in order to do so, the
record does not support this claim.
sentencing Pernot for his VOP, the Superior Court was
authorized to impose any period of incarceration up to and
including the balance of the Level V time remaining to be
served on the original sentence. The Superior Court's
VOP sentence did not exceed the Level V time remaining to be
served on Pernot's original sentence. We will not
consider Pernot's ineffective assistance of counsel
claims for the first time on direct appeal.
THEREFORE, IT IS ORDERED that the motion to affirm is GRANTED
and the judgment ...