Jenkins v. State

• Decision Date: 06 December 2010
• Docket Number: No. 261, 2010.,261, 2010.
• Citation: 8 A.3d 1147
• Parties: David JENKINS, Defendant Below, Appellant, v. STATE of Delaware, Plaintiff Below, Appellee.
• Court: United States State Supreme Court of Delaware

8 A.3d 1147

David JENKINS, Defendant Below, Appellant,

v.STATE of Delaware, Plaintiff Below, Appellee.

No. 261, 2010.

Supreme Court of Delaware.

Submitted: Sept. 15, 2010.

Decided: Dec. 6, 2010.

Court Below: Superior Court of the State of Delaware in and for New Castle County, Cr. I.D. No. 0104000981.

Upon Appeal from the Superior Court. AFFIRMED.

Michael W. Modica, Esquire, Wilmington, Delaware, for Appellant.

Susan Dwyer Riley, Esquire, Department of Justice, Wilmington, Delaware, for Appellee.

Before STEELE, Chief Justice, JACOBS and RIDGELY, Justices.

JACOBS, Justice:

David Jenkins ("Jenkins"), the defendant-below, appeals from a Superior Court order finding him in violation of his probation, revoking his previous Level II probation sentence, and sentencing him to four years and ten months of incarceration at Level V supervision. On appeal, Jenkins claims that: the trial court's findings are not supported by competent evidence, his due process rights were violated, and the sentence imposed was an abuse of discretion. We find no error and affirm.

FACTUAL AND PROCEDURAL BACKGROUND

In 2001, Jenkins pled guilty to one count each of trafficking in cocaine ("trafficking") ¹ and maintaining a vehicle for the keeping of controlled substances ("maintaining a vehicle").² The Superior Court sentenced him as follows: (a) for trafficking, ten years of Level V incarceration, suspended after four years (minimum mandatory) for the balance at Level III probation; and (b) for maintaining a vehicle, three years at Level V incarceration, suspended immediately for three years' probation.

In 2005, Jenkins was charged with violating his probation after being arrested on new, unrelated drug charges.³ Jenkins contested the charges and moved to suppress evidence in both the underlying criminal case and his violation of probation ("VOP") hearing.⁴ At the VOP hearing, the motion to suppress was dismissed for "failure to prosecute," because Jenkins did not appear.⁵ At a rescheduled VOP hearing, the judge held that Jenkins had failed properly to renew his motion. Based on the evidence presented, the trial court resentenced Jenkins to six years at Level V, suspended after four years for decreasing levels of probation (for trafficking), and three years at Level V, suspended immediately for eighteen months at Level III probation (for maintaining a vehicle).

Jenkins' motion to suppress was granted in the co-pending criminal case, however,and those charges were later dismissed.⁶ Thereafter, Jenkins appealed his 2005 VOP sentence on the ground that the Superior Court erred in finding that he had violated his probation based on evidence that ultimately was suppressed.⁷ This Court affirmed, holding that Jenkins had waived his right to present a motion to suppress in the 2005 VOP hearing. ⁸

Jenkins later moved for post-conviction relief, which the Superior Court denied, and this Court dismissed Jenkins' direct appeal as untimely.⁹ Between October 2006 and August 2008, Jenkins filed three motions to modify or reduce his 2005 VOP sentence, all of which the Superior Court denied.

In April 2009, Jenkins again violated his probation and was resentenced to two years at Level V, with credit for nine days previously served, suspended after thirty days for eighteen months at Level III (trafficking charge); and three years at Level V, suspended for eighteen months of concurrent Level III probation (maintaining a vehicle).

On January 8, 2010, the police arrested Jenkins on four new drug charges: (1) trafficking in cocaine; ¹⁰ (2) possession with intent to distribute cocaine; ¹¹ (3) maintaining a dwelling for keeping controlled substances; ¹² and (4) possession of drug paraphernalia.¹³ The State filed an administrative warrant, listing the new drug charges, together with other technical violations, as grounds for finding Jenkins in violation of his probation.

Jenkins contested the administrative warrant, and a VOP hearing was scheduled for March 3, 2010. Jenkins' counsel requested a continuance to have additional time to review discovery. The Superior Court granted the continuance, and rescheduled the contested VOP hearing to April 14, 2010. On March 29, 2010, Jenkins moved to suppress the evidence in the co-pending criminal trial. He did not, however, file a suppression motion in connection with the upcoming April 14th contested VOP hearing.

At the April 14th VOP hearing, the trial judge heard testimony from Jenkins' probation officer, Jeffery Boykin ("Boykin"), and Corporal Dewey Stout, a detective with the Delaware State Police drug unit. Boykin testified that Jenkins' technical violations included "failure to report a change in address" and "two dirty urine screens for marijuana." As for the address change, Boykin testified that although Jenkins reported his address as 1000 Wright Street in Wilmington (the "Wright Street" residence), he was actually living at 917 Barrett Lane in Newark (the "Barrett Lane" residence). Corporal Stout testified that he never saw Jenkins at the Wright Street residence,¹⁴ but observed him at theBarrett Lane residence on multiple occasions. ¹⁵ When Corporal Stout arrested Jenkins, he found a key to the Barrett Lane residence, and during a search of that residence he also found a lease agreement for Barrett Lane which listed only Jenkins as the lessee.¹⁶

Regarding the new drug charges, Corporal Stout testified that he had received information from a confidential source ("CS") that Jenkins was selling cocaine. Based on that information, Corporal Stout conducted two "controlled buys" by the CS from Jenkins.¹⁷ Corporal Stout testified that the substance the CS turned over from the first controlled buy "field-tested positive." After the second controlled buy, Corporal Stout met with the CS, who again turned over "an amount of cocaine."

Based on the results of the two controlled buys and his surveillance of the Barrett Lane residence, Corporal Stout obtained a warrant to search that residence. Using Jenkins' key, he searched the Barrett Lane residence and found a lease agreement bearing Jenkins' name and 34.1 grams of powder cocaine, separated into three bags. He also found a small digital scale, a cocaine press, a bottle of inositol,¹⁸ and $2,715 in cash.

Jenkins' counsel requested the sentencing judge to disregard the testimony regarding the new drug charges, because a suppression motion had been filed in the co-pending criminal case. Noting that Jenkins had not filed a suppression motion with respect to the VOP hearing, the sentencing judge found that there was "ample evidence to find the defendant guilty of violating his probation by delivering controlled substances by trafficking." At the April 14th VOP hearing, the judge reimposed all of the suspended jail time from Jenkins' earlier (2001) convictions for trafficking and maintaining a vehicle, based on Jenkins' repeated probation violations.

On June 7, 2010, the Superior Court granted the suppression motion in the co-pending criminal case, and dismissed all of the charges. Jenkins now appeals from his April 14th VOP sentencing.

ANALYSIS

On appeal, Jenkins advances three reasons why this Court should reverse the trial court's revocation of his probation. Jenkins admits that he failed to raise any of these issues at the April 14th contested VOP hearing. He asserts, however, that the trial court's VOP determination was plain error and deprived him of substantial rights under the Fifth and Fourteenth Amendments of the United States Constitution, and Article 1, Section 7 of the Delaware Constitution.¹⁹

This Court normally reviews a trial court's revocation of a defendant's probation for abuse of discretion.²⁰ Jenkins' claims, however, are reviewable only for plain error because he failed to assert them at the April 14th contested VOP hearing.²¹ Under the "plain error" doctrine, we are "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." ²²

I. Jenkins' Claim That There Was Insufficient Evidence To Support The Trial Court's Finding That He Violated His Probation

Jenkins first claims that the State failed to present competent evidence to support the trial court's finding, by a preponderance of the evidence, that he violated his probation. He argues that the State's evidence was based predominately on hearsay, rather than upon the first-hand knowledge of testifying witnesses.²³ Jenkins also contends that the State provided "no evidence" in support of the reported "positive" urine screens.

Although hearsay evidence is admissible in VOP hearings, our law requires "some competent evidence to prove the violation asserted." ²⁴ Further, if the defendant denies violating his probation, there must be some competent evidence linking the defendant to the crime.²⁵ The evidence must "reasonably satisfy the judge that the conduct of the probationer has not been as good as required by the conditions of the probation." ²⁶ Although the State does not need to establish guilt beyond a reasonable doubt, probation cannot be revoked solely upon the basis of testimony from a witness who has "no first-hand knowledge of the events constituting the violations." ²⁷

Jenkins' claim fails for three reasons. First, his argument that the State presented insufficient or no evidence toprove his failure to report a change of address and failed urine screens is unfounded. Boykin testified about Jenkins' failure to report his address change and the positive urine screens, and Jenkins presented no evidence to controvert that testimony. Nor did Jenkins dispute or challenge Boykin's testimony at the hearing or suggest that Boykin's testimony was not credible.²⁸

Second, Corporal Stout testified that he personally conducted most of the surveillance and investigation leading to Jenkins' arrest on the new drug charges. Corporal Stout...