IN THE SUPREME COURT OF THE STATE OF DELAWARE
STATE OF DELAWARE,
No. 152, 2011
Court Below─Superior Court
of the State of Delaware
in and for New Castle County
Cr. ID No. 0607023450
Submitted: September 23, 2011
Decided: October 17, 2011
Before STEELE, Chief Justice, HOLLAND and JACOBS, Justices
This 17th day of October 2011, upon consideration of the briefs of the
parties and the record below, it appears to the Court that:
The defendant-appellant, Andre McDougal, filed an appeal
from the Superior Court’s March 2, 2011 violation of probation (“VOP”)
sentencing order. We find no merit to the appeal. Accordingly, we affirm.
The record before us reflects that, in January 2008, a jury found
McDougal not guilty of Murder in the First Degree and was hung on the
lesser-included charges of Murder in the Second Degree and Manslaughter
as well as two weapon charges. In September 2008, on the day of his retrial,
McDougal pleaded guilty to a single count of Manslaughter.
sentenced to twenty years at Level V incarceration, to be suspended after
three years for one year of Level III probation. In January 2010, McDougal
was found to have committed a VOP. He was re-sentenced to seventeen
years at Level V, to be suspended for seventeen years at Level IV, in turn to
be suspended after six months for one year at Level III probation. On March
2, 2011, following a contested VOP hearing, McDougal again was found to
have committed a VOP and was re-sentenced to seventeen years at Level V,
to be suspended after fifteen years for two years at Level III probation.
In this appeal from his latest VOP sentence, McDougal claims
that a) the Superior Court abused its discretion when it sentenced him to
fifteen years at Level V; b) the public defender who represented him at the
VOP hearing provided ineffective assistance due to a conflict of interest; and
c) his due process rights were violated because the finding of a VOP was
based upon hearsay evidence.
McDougal’s first claim is that the Superior Court abused its
discretion when it revoked his probation and sentenced him to fifteen years
at Level V. Revocation of probation is within the broad discretion of the
Superior Court.1 Once a VOP is established, the Superior Court may order
the violator to serve any sentence that originally was suspended, less time
Brown v. State, 249 A.2d 269, 271-72 (Del. 1968).
A VOP sentence will not be reversed unless it exceeds the
maximum permitted by law or was the result of vindictive or arbitrary action
on the part of the sentencing judge.3
The transcript of the March 2, 2011 VOP hearing reflects that
McDougal’s criminal record included convictions of first degree assault,
weapon violations and escape after conviction, in addition to his
manslaughter conviction. Moreover, this was McDougal’s second VOP in
connection with his manslaughter conviction. Finally, McDougal’s VOP
was based not only on a curfew violation, but also because he had been
arrested on new drug and weapon charges. As such, there was more than
ample support for the Superior Court’s sentence. In the absence of any
evidence that McDougal’s VOP sentence exceeded the statutory maximum
or resulted from an abuse of discretion on the part of the sentencing judge,
we conclude that his first claim is without merit.
McDougal’s second claim is that the public defender who
represented him at the March 2, 2011 VOP hearing provided ineffective
assistance due to a conflict of interest. McDougal bases this claim on the
fact that, following his indictment on his new drug and weapon charges, the
Office of the Public Defender was assigned to represent his co-defendant,
Del. Code Ann. tit. 11, §4334(c).
Mayes v. State, 604 A.2d 839, 842-43 (Del. 1992).
who pleaded guilty to Possession of Heroin. The record before us reflects
that, at the time of McDougal’s VOP hearing, McDougal’s co-defendant had
absconded from probation and did not appear as a witness. Also, following
the VOP hearing, the Office of the Public Defender filed a conflict letter in
the Superior Court declining further representation of McDougal.4 The letter
explained that, if McDougal should proceed to trial on his new drug and
weapon charges, his co-defendant could be called as a witness, thereby
creating a conflict for defense counsel.
This Court has held that a claim of ineffective assistance due to
a conflict of interest must be supported by a demonstration of actual
prejudice.5 McDougal has presented no evidence of “an actual conflict of
interest adversely affect[ing] his lawyer’s performance,”6 nor do we find any
such evidence in the transcript of the VOP hearing. As such, we conclude
that McDougal’s second claim also is unavailing.
McDougal’s third, and final, claim is that his due process rights
were violated because the finding of a VOP was based upon hearsay
evidence. The United States Supreme Court has ruled that a VOP hearing is
not a formal criminal trial and that, therefore, only minimal requirements of
Del. Rules of Prof. Cond., Rule 1.7(a).
Lewis v. State, 757 A.2d 709, 717 (Del. 2000).
Id. at 718.
due process must be observed.7 Following that precedent, this Court has
determined that the formal rules of evidence are inapplicable to a VOP
hearing8 and that hearsay is permissible.9
The transcript of McDougal’s March 2, 2011 VOP hearing
reflects that the hearing was conducted in accordance with the procedures
outlined in Superior Court Criminal Rule 32.1 and that he was afforded the
due process to which he was entitled in a VOP proceeding. We, therefore,
conclude that McDougal’s third claim likewise is without merit.
NOW, THEREFORE, IT IS ORDERED that the judgment of the
Superior Court is AFFIRMED.
BY THE COURT:
/s/ Randy J. Holland
Perry v. State, 741 A.2d 359, 362-63 (Del. 1999) (citing Gagnon v. Scarpelli, 411 U.S.
778, 782 (1973)).
Brown v. State, 249 A.2d 269, 272 (Del. 1968).
Id.; Super. Ct. Crim. R. 32.1.