Cruz v. State
| Decision Date | 19 February 2010 |
| Docket Number | No. 298,2008.,298 |
| Citation | 990 A.2d 409 |
| Parties | Roberto CRUZ, Defendant Below, Appellant, v. STATE of Delaware, Plaintiff Below, Appellee. |
| Court | Supreme Court of Delaware |
Christopher D. Tease, Esquire, Wilmington, DE, for appellant.
James T. Wakley, Esquire, Department of Justice, Wilmington, DE, for appellee.
Before STEELE, Chief Justice, HOLLAND, BERGER, JACOBS and RIDGELY, Justices, constituting the Court en Banc.
The defendant-appellant, Roberto Cruz ("Cruz"), appeals from a judgment entered by the Superior Court after a violation of probation ("VOP") hearing. Cruz's first argument is that the Superior Court erred in finding that Cruz had violated the terms of his probation. According to Cruz, it was improper for the judge to consider evidence presented to a jury at Cruz's criminal trial presided over by the same judge the preceding week that resulted in Cruz's acquittal on all charges. Cruz's second argument is that the judge who presided over Cruz's VOP hearing sentenced him with a "closed mind."
We have concluded that both of Cruz's arguments are without merit. Therefore, the judgment of the Superior Court must be affirmed.
On May 23, 2007, Detective Mark Lewis of the Governor's Task Force, along with other officers, conducted a search of Cruz's home. According to Lewis, officers discovered a small amount of cocaine in the pocket of a shirt hanging in Cruz's closet and a Crown Royal bag containing 326 MDMA1 pills in Cruz's sitting room. When Cruz was subsequently arrested at Bank Shots bar, police found $1,238 cash in his pocket. Cruz later gave a statement to police. In that statement, Cruz indicated that he was negotiating a deal for around $6 per MDMA pill with two other men.
In May 2007, Cruz was arrested and subsequently charged by indictment, with Trafficking in MDMA, Possession with Intent to Deliver MDMA, Maintaining a Dwelling for Keeping Controlled Substances, Possession with Intent to Distribute Cocaine, and Possession of Drug Paraphernalia. As a result of these charges, a VOP report was filed against Cruz on June 25, 2007.2 On July 11, 2007, Cruz failed to appear at a fast track hearing, and a capias was issued. Cruz was returned to custody on January 24, 2008, after surrendering voluntarily.
Cruz proceeded to trial on the substantive offenses on May 20, 2008. At trial, Cruz was represented by counsel. After a four-day trial, the jury acquitted Cruz of all charges. Cruz testified that when police first arrived at the bar, he believed that he was being arrested for a curfew violation, and was shocked to hear that his arrest was for trafficking in MDMA. Cruz denied owning the ecstasy pills and testified that he only told police that he was brokering a sale of the pills because he was being pressured to do so. Cruz also denied being aware of the cocaine found in the pocket of a shirt hanging in his room.
On May 30, 2008, a VOP hearing was held before the same judge who had presided over Cruz's jury trial the week before. At that hearing, Cruz was again represented by the same attorney who had successfully represented him at the criminal trial. The judge ruled that Cruz had violated the terms of his probation by absconding and had committed "other technical violations." The judge additionally found that, based upon a preponderance of the evidence presented at trial, Cruz had violated the terms of his probation due to his Trafficking in MDMA, Maintaining a Dwelling for Keeping Controlled Substances, and Possession of Cocaine. Cruz was sentenced to two years incarceration at Level V, suspended after eighteen months for a period of probation.
The trial court's revocation of a defendant's probation is normally reviewed for an abuse of discretion.3 However, the instant claim may only be reviewed for plain error because Cruz did not object at the hearing to the trial judge's reliance on the record from his criminal trial.4 "`The doctrine of plain error is limited to material defects which are apparent on the face of the record, which are basic, serious, and fundamental in their character, and which clearly deprive an accused of a substantial right, or which clearly show manifest injustice.'"5
On May 20, 2008, Cruz proceeded to trial on, inter alia, Trafficking in MDMA. After a four-day jury trial, Cruz was acquitted of all charges. Seven days later, Cruz appeared before the same judge who had presided over his criminal trial to answer the charges in the VOP report that were based upon the same conduct. The State did not offer any evidence at the VOP hearing. With no objection from the same defense counsel who represented Cruz at the prior criminal trial, the judge found Cruz guilty of violating his probation:
On June 18, 2008, Cruz filed a motion for reduction of sentence. In denying Cruz's motion, the judge further explained his earlier finding that there had been a probation violation:
I heard the evidence at trial and frankly cannot understand how the jury acquitted you. In any event, by a preponderance of the evidence, I found that you committed those offenses and that was one of the bases for the finding of guilt on the probation violation. In addition, you admitted that you violated your probation by leaving the state without permission and not reporting to your probation officer. It is a further violation that you jumped bail when you took off for Texas. There is thus ample grounds for finding you guilty of violating your probation.
Cruz claims that the Superior Court erred by finding that he had violated the terms of his probation without hearing any evidence of the violation from the State at the VOP hearing. Cruz argues that, by not requiring the State to present evidence of the violations at his VOP hearing, in addition to the evidence presented at the criminal trial over which the same judge had presided one week earlier, his due process rights under the United States Constitution were violated.6
The State argues that, because Cruz had already admitted violating the terms of his probation by leaving Delaware without permission, the Superior Court did not err in finding him in violation of probation. The State also argues that the trial judge did not err in relying upon the testimony and evidence presented at Cruz's prior criminal trial to support his decision to revoke Cruz's probationary status. We agree with both of the State's arguments.
Title 11, section 4334(c) of the Delaware Code sets forth, in part, the procedure to be used in VOP proceedings:
Upon such arrest and detention, the Department shall immediately notify the court and shall submit in writing a report showing in what manner the probationer has violated the conditions of probation or suspension of sentence. Thereupon, or upon arrest by warrant as provided in subsection (b) of this section, the court shall cause the probationer to be brought before it without unnecessary delay, for a hearing on the violation charge. The hearing may be informal or summary. If the violation is established, the court may continue or revoke the probation or suspension of sentence. . . .
In Brown v. State,7 this Court interpreted the statute as requiring a hearing before a revocation of probation.8 Regarding the type of hearing required, this Court explained that "except for the provisions that such hearing may be `informal or summary,' and that the violation must be `established,' there is no statutory prescription as to its nature and scope."9 This Court continued:
A probationer accused of violation is not entitled to a trial in any strict or formal sense; his entitlement in this regard is limited to "an inquiry so fitted in its range to the needs of the occasion as to justify the conclusion that discretion has not been abused by the failure of the inquisitor to carry the probe deeper."10
To sustain a violation of probation, all that is necessary is "some competent evidence" to prove that the violation occurred.11 This Court has also held, however, that due process and fundamental fairness require that the State provide the probationer with counsel "when a violation of probation hearing follows an acquittal after a criminal trial for the same alleged conduct."12
This Court has decided two other cases where the same judge presided over a violation of probation hearing within a few days of an acquittal after a criminal trial for the same alleged conduct. In Gibbs v. State,13 eight days after his acquittal, Gibbs appeared without counsel before the same judge for his scheduled VOP hearing. As this Court observed:
Without . . . hearing any evidence from the State or Gibbs, the judge sua sponte found by a preponderance of the evidence that an offense had been committed and that Gibbs had violated his probation. The judge stated that his finding was based on the evidence he heard at the May 27th trial and that, although Gibbs was found not guilty by the jury, the standard of proof for a finding of guilt was lesser at a VOP hearing, i.e., preponderance of the...
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...when the person fails to exercise the standard of care which a reasonable person would observe in the situation.”).28 Cruz v. State , 990 A.2d 409, 416 (Del. 2010) (quoting Weston v. State , 832 A.2d 742, 746 (Del. 2003) ); Weber v. State , 655 A.2d 1219, 1221 (Del. 1995).29 Cruz , 990 A.2d......
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