DIXON v. STATE, 790 A.2d 475 (Del. 2002)

PURILY DIXON, Defendant Below-Appellant, v. STATE OF DELAWARE, Plaintiff Below-Appellee.

No. 375, 2001Supreme Court of Delaware.
Decided: February 4, 2002

Court Below-Superior Court of the State of Delaware, in and for Sussex County Cr.A. Nos. VS99-06-0247-01 VS99-06-0248-01 VS99-06-0252-01.

AFFIRMED.

Unpublished Opinion is below.

PURILY DIXON, Defendant Below-Appellant, v. STATE OF DELAWARE, Plaintiff Below-Appellee. No. 375, 2001 Supreme Court of the State of Delaware. Decided: February 4, 2002

Court Below-Superior Court of the State of Delaware, in and for Sussex County Cr.A. Nos. VS99-06-0247-01 VS99-06-0248-01 VS99-06-0252-01.

Before VEASEY, Chief Justice, HOLLAND and BERGER, Justices

Randy J. Holland, Justice:

ORDER
This 4th day of February 2002, upon consideration of the appellant’s opening brief and the appellee’s motion to affirm pursuant to Supreme Court Rule 25(a), it appears to the Court that:

(1) The defendant-appellant, Purily Dixon, filed an appeal from the July 13, 2001 orders of the Superior Court finding him in violation of probation. The plaintiff-appellee State of Delaware has moved to affirm the judgment of the Superior Court on the ground that it is manifest on the face of Dixon’s opening brief that the appeal is without merit.[1]
We agree and AFFIRM.

(2) In his appeal, Dixon claims that: a) he was sentenced improperly at his violation of probation (“VOP”) hearing, first, because he was moved up more than one “sentence level” and, second, because he was referred to the Key Program; b) he was improperly denied counsel and should now be released on bail in order to retain counsel; and c) the breathalyzer test that established his VOP should not have been considered because it was conducted improperly.

(3) In 1999 Dixon pleaded guilty[2] to Driving Under the Influence of Alcohol (fourth offense), Driving After Judgment Prohibited, and Driving with a Suspended License. On the DUI conviction, the Superior Court imposed a sentence of five years incarceration at Level V, to be suspended for probation after nine months. On the conviction for driving after judgment, the Superior Court imposed a sentence of two years at Level V, to be suspended for probation after three months. On the conviction for driving with a suspended license, the Superior Court imposed a sentence of 30 days at Level V, to be suspended for six months of probation. Among a number of conditions of his sentences, Dixon was to report regularly for his treatment programs and abstain from consuming any alcohol.[3]

(4) At Dixon’s July 13, 2001 VOP hearing, he admitted to missing a group session at Crest Aftercare on June 29, 2001 and drinking alcohol. Dixon was sentenced to four years and three months incarceration at Level V on the DUI conviction, to be suspended for probation (including Crest Aftercare), after one year at Level V and subsequent successful completion of the Key Program. On the driving after judgment conviction, he was sentenced to one year and nine months incarceration at Level V, to be suspended for eighteen months probation. And, finally, on the driving without a license conviction, he was sentenced to thirty days incarceration at Level V, with credit for eleven days served. Dixon was discharged as unimproved on the remainder of the sentence.

(5) We have reviewed carefully the transcript of the VOP hearing and there is no evidence that the Superior Court abused its discretion in sentencing Dixon.[4] Also without merit are Dixon’s claims that he was entitled to legal representation and the breathalyzer evidence was insufficient to support his VOP. Dixon did not object to appearing pro se at the VOP hearing,[5] nor did he object to the breathalyzer evidence.

Moreover, he admitted to violating his probation by consuming alcohol.

Dixon has, thus, failed to demonstrate plain error on the part of the Superior Court in finding that he had committed a VOP.[6]

(6) It is manifest on the face of Dixon’s opening brief that this appeal is without merit because the issues presented on appeal are controlled by settled Delaware law and, to the extent judicial discretion is implicated, clearly there was no abuse of discretion.

NOW, THEREFORE, IT IS ORDERED that, pursuant to Supreme Court Rule 25(a), the State of Delaware’s motion to affirm is GRANTED.

The judgment of the Superior Court is AFFIRMED.

[1] SUPR. CT. R. 25(a).

[2] Pursuant to a plea agreement. SUPER. CT. CRIM. R. 11(e)(1)(C).

[3] The sentencing order states: “This sentence is imposed with zero tolerance for alcohol consumption while on probation.”

[4] Dixon does not claim that his VOP sentences exceeded either the statutory limits or his original sentences. Gamble v. State, 728 A.2d 1171, 1172 (Del. 1999); Ingram v. State, 567 A.2d 868, 869 (Del. 1989). Moreover, the Superior Court was within its discretion to sentence Dixon to the Key Program. Jones v. State, Del. Supr., No. 223, 2001, Walsh, J. (Oct. 31, 2001).

[5] The record reflects that Dixon was informed by letter of his right to retain counsel prior to the hearing. SUPER. CT. CRIM. R. 32.1. The VOP proceeding did not present any substantial or complex issues that would have entitled Dixon to the appointment of counsel. Jones v. State, 560 A.2d 1056, 1057 (Del. 1989).

[6] Brown v. State, 249 A.2d 269, 272 (Del. 1968) (The evidence need only satisfy the judge that the probationer’s conduct “has not been as good as required by the terms and conditions of probation.”)