TIMS v. STATE, 738 A.2d 239 (Del. 1999)

No. 151, 1999.Supreme Court of Delaware.
September 8, 1999.

Appeal from the Superior Court, Sussex County, CrA 92-11-0409, 92-11-0413, 92-11-0417.

AFFIRMED

Unpublished Opinion is below.

DAWN TIMS, Defendant Below-Appellant, v. STATE OF DELAWARE, Plaintiff Below-Appellee. No. 151, 1999. Supreme Court of Delaware. September 8, 1999.

Court Below — Superior Court of the State of Delaware, in and for Sussex County, Cr.A. Nos. 92-11-0409, 92-11-0413, 92-11-0417.

Before VEASEY, Chief Justice, HARTNETT andBERGER, Justices.

ORDER
This 8th day of September 1999, upon consideration of the briefs on appeal and the record below, it appears to the Court that:

(1) The defendant-appellant, Dawn Tims (“Tims”), filed this appeal from an order of the Superior Court which adjudged her guilty of a probation violation, revoked her probation and imposed sentence therefor. We find no merit to the appeal. Accordingly, we affirm.

(2) On this appeal, Tims claims that her constitutional rights were violated because she was not given the opportunity to retain counsel to represent her at the violation of probation (“VOP”) hearing and the sentencing hearing. Tims contends that the Superior Court should have assured that she had counsel before conducting the hearings.

(3) In November 1992, Tims pleaded guilty to 3 counts of Burglary Second Degree and on each count received a prison sentence and probation, to be served consecutively. In February 1997, Tims was found to be in violation of probation and was resentenced. It appears that in April 1997, Tims was again found guilty of a probation violation. Tims was most recently found guilty of violating probation in January 1999 and was resentenced in March 1999. In April 1999, the Superior Court reduced Tims’ sentence.

(4) Tims’ claim that the Superior Court should have assured that she was provided with counsel is without merit. The record does not indicate that Tims ever denied absconding from probation, the offense with which she was charged. In two letters to the Superior Court judge, Tims did not complain that she had not violated her probation; rather, she objected to the severity of the sentence. In response to her objection, the Superior Court reduced a portion of her sentence. The reasons offered by Tims at the sentencing hearing in justification or mitigation of her violation of probation were neither substantial nor complex. Under these circumstances, the Superior Court was not obligated to appoint counsel to represent Tims at either the VOC hearing or the sentencing hearing.[1]

(5) The record indicates that Tims was afforded an opportunity to retain counsel, but chose not to do so. By letter dated January 8, 1999, the Superior Court informed Tims of her upcoming VOP hearing and advised her to contact counsel immediately if she desired legal representation. The Superior Court had previously sent Tims two letters in 1997 in connection with upcoming VOP hearings, the first on February 7, 1997 and the second on March 24, 1997. In both letters the Superior Court informed Tims of her upcoming VOP hearing and advised her to contact counsel immediately if she desired legal representation. Tims was, thus, familiar with the procedure for retaining counsel for such hearings. The transcript of the sentencing hearing indicates that Tims did not object to her lack of legal representation at that hearing, nor did she complain at that time that she had not been represented at the previous VOP hearing. Finally, Tims has provided no record support to indicate that she requested counsel at the VOP hearing.

NOW, THEREFORE, IT IS ORDERED that the judgment of the Superior Court be, and the same hereby is, AFFIRMED.

BY THE COURT:

___________________________ E. Norman Veasey, Chief Justice