State v. Casella

• Court: United States State Supreme Court of Delaware
• Writing for the Court: Fred S. Silverman
• Parties: State v. Perry Casella, ID# 0310022700.
• Decision Date: 29 April 2005

Page 1

State
v.
Perry Casella, ID# 0310022700. Superior Court of Delaware for New Castle County. Submitted: January 25, 2005. Decided: April 29, 2005.

Upon Defendant's Motion for Reconsideration of Commissioner's Order — DENIED.

Sean Lugg, Esquire, Department of Justice, Carvel State Office Building, Wilmington, DE.

Dean DelCollo, Esquire, Carvel State Office Building, Wilmington, DE.

FRED S. SILVERMAN, Judge.

Dear Counsel:

Defendant asks the court to reconsider the Commissioner's December 7, 2005 restitution order.

I.

On July 20, 2004, Defendant pleaded guilty and was convicted of four counts of home improvement fraud under 11 Del. C. § 916(b)(4). After a presentence

Page 2

investigation, he was sentenced on September 10, 2004. The sentence called for Defendant to make full restitution. At sentencing, the court reviewed the victims' claims. In some instances, the court rejected or scaled-back the claims. For example, the court rejected victim Conde's claim for almost $20,000 in emotional, health-related, psychological, environmental and social injury damages. Ultimately, the court ordered Defendant to pay $116,726.93.

On September 22, 2004, Defendant submitted a letter insisting that a restitution hearing should have been held before Defendant was sentenced. In response, the court granted Defendant's informal request and a Commissioner conducted an evidentiary hearing on November 8, 2004. The Commissioner's December 7, 2004 restitution order relied on the presentence investigation, the sentencing proceeding, Defendant's testimony at the restitution hearing, and voluminous financial records / work papers submitted by Defendant.

II.

Under Superior Court Criminal Rule 62(a)(4), each Commissioner has "[t]he power to conduct non case-dispositive hearings, including non case-dispositive evidentiary hearings. . . ." As Defendant recognizes, under Rule 62 (a)(4)(iv):

A judge may reconsider any hearing or pretrial matter under subparagraph (4) only where it has been shown on the record that the Commissioner's order is based upon findings of fact that are clearly erroneous, or is contrary to law, or an abuse of discretion.

Defendant claims the Commissioner's order "fails not just one, but all three standards of review under Superior Court Criminal Rule 62[(a)](4)(iv)."

III.

Defendant does not challenge the Commissioner's order as it relates to

Page 3

victims Lynch and Darlene Smith. But as to victims Conde, Bumgartner, Mullikin, Granger, Alexander and Elmond Smith, Defendant disputes the restitution order. At the hearing, Defendant offered his testimony and papers showing that he had performed some work or he supplied some materials to the victims' jobs.

In summary, Defendant complains that the Commissioner did not give him partial credit toward his restitution obligation for work he did or the supplies he provided. Moreover, relying on Benton v. State, 711 A.2d 792 (Del. 1998), Defendant argues that the court should consider Defendant's ability to pay.

The Commissioner correctly apprehended that Defendant was not entitled to a dollar-for-dollar set-off for whatever he spent on the victims' jobs. As the presentence investigation shows, and as reflected in the victims' claims as the Commissioner's order reflects, the victims did not benefit from the incomplete, slipshod work performed by Defendant. In some instances, Defendant's work increased the victims' losses. In his Motion, Defendant does not address the victims' losses. He merely asks the court to consider "what the Defendant spent on all of the jobs in question." And, Defendant...