IN THE SUPERIOR COURT OF THE STATE OF DELAWARE

STATE OF DELAWARE, )

)

v. ) ID No. 1009001060

)

THOMAS E. WISHER

, )

)

Defendant. )

Date Submitted: February 28, 2020

Date Decided: September 2 8 , 20 20

ORDER

U pon consideration of Defendant’s “ Motion to Reconciter ” ( the “Motion”)

, 1

the State’s Response, 2 statutory and decisional law, and the record in this case, IT

APPEARS THAT:

1. On March 15, 2011, Defendant pled guilty to Possession of a Firearm

During the Co mmission of a Felony (“PFDCF”) and Assault Second Degree. 3 By

Order issued on March 15, 2011, effective September 2, 2010, Defendant was

sentenced as follows: for PFDCF

, IN10

- 09

- 0831, 4 years at Level V ; and for Assault

S econd Degree, IN10

- 10

- 1244, 8 years at Level V

, suspended for 8 years at Level

IV (Work Release), sus pended after 6 months at Level IV (Work Release), for 12

1 D.I. 60. Though Defendant styled his Motion as a m otion to r econsider, the Court considers it

as a m otion for m odification of s entence , as does the State. D.I. 63.

2 D.I. 63.

3 D.I. 8.2

months at Level III , hold at L evel V unt il space is available at Level IV (Work

Release). 4

2. On October 13, 2016, Defendan t was found in violation of probation

( “ VOP ” ) on the Assault S econd charge and sentenced to 7 years at Level V with

credit for 15 days previously served, suspended for 6 months at Level IV (Home

Confinement), followed by 6 months at Level III , hold at Leve l III until space is

available at Level IV (Home Confinement). 5

3. On April 21, 2017, while serving probation for his October 13, 2016

VOP, Defendant was arrested and ch arged with several new felonies. 6 These new

charges formed the basis for another VOP on Defendant’s Assault Second charge

. 7

4. While awaiting a VOP hearing for the April 21, 2017 VOP, Defendant

spent 40 days in Howard R. Young Correctional Institute. 8 During that period, the

State noll e prossed Defendant’s April 21, 2017 charges

. 9

5. Despite the State’s nolle prosequi

, on July 25, 2019, the Court held a

hearing o n the VOP premised on the April 21, 2017 charges

. At the hearing, the

4 D.I. 11.

5 D.I. 42, 44.

6 D.I. 63, at 1.

7 Id.

8 D.I. 57. On Septemb er 26, 2019, Defendant filed a Motion for Credit for Time P reviously S erved

seeking to credit these 40 days against the 11

- month Level V sentenced that Defendant received

on July 25, 2019. Id. ; D.I. 55. The State did not oppose Defendant’s motion, D.I. 59 at ¶ 5, and

the Court granted it. D.I. 61.

9 D.I. 63, at 1.3

Court found that Defendant’s conduct that resulted in the April 21, 2017 charges

constituted a VOP of Defendant’s Assault Second charge

. 10 Consequently, the Court

sentenced Defendant to 11 months at Level V. 11

6. On December 12, 2019, Defendant filed the instant Motion asking the

Cou rt to relieve him of the 11

- month Level V sentence. 12 Defendant argues as

follows: the State nolle prossed Defendant’s April 21, 2017 charges, but the Court

used those charges to find Defendant in VOP at the July 25, 2019 VOP hearing, so

the sentence resu lting from the July 2 5, 2019 VOP hearing must be vacated

. 13 In

more general terms , Defendant contends that if the State refuses to prosecute certain

charges but nonetheless pursues a VOP based on those charges, any resulting

sentence must be vacated.

7

. In opposition to Defendant’s Motion, the State makes two arguments

. 14

First, the State argues that when a defendant serving probation receives a new

charge , the Court can revoke the defendant’s probation and impose a sentence

—

even if the State dismisses th e new charge. 15 Second, the State argues that it may

10 Id. ; D.I. 55.

11 D.I. 55, 56.

12 D.I. 60.

13 Id.

14 D.I. 63.

15 Id. ( quoting Hawkins v. State , 2010 WL 3341578 , at *1 (Del. Aug. 25, 2010) (“The argument

Hawkins presents on appeal, i.e., that the May 19, 2010 dismissal of the new charges requires a

reduction of his April 23, 2010 VOP sentence, is without merit. The Superior Court has the

authority to revoke probation and to impose sentence on the basis that the probationer has been4

pursue a VOP even if it declines to prosecute a charge underlying that VOP. 16 T he

State may find , for example, that it possesses enough evidence to secure a VOP but

not enough evidence to secure a convic tion

. 17 This is so because t he State’s burden

of proof at VOP hearing is not proof beyond a reasonable doubt; it i s proof by a

preponderance of the evidence. 18 The State is correct

.

8. Here, the Court determined, by a preponderance of the evidence, that

Defendant’s conduct giving rise to the April 21, 2017 charges violated his probation.

9

. Pursuant to 11 Del. C. § 4334(c), if a VOP is established, the Court

“ may continue or revoke the probation or suspension of sentence, and may require

the probation vio lator to serve the sentence imposed, or any lesser sentence, and, if

imposition of sentence was suspended, may impose any sentence which might

originally have been imposed.” “ In other words, when sentencing a defendant for a

VOP, the Superior Court is aut horized to reimpose any previously suspended prison

term .” 19 Here, t he 11

- month sentence for Defendant’s VOP falls well within the

previously suspended prison term for that charge

.

ch arged with new criminal conduct notwithstanding dismissal of the criminal charges involving

the same conduct that gave rise to the violation of probation hearing.”) )

. 16 Id. (internal quotations omitted) (quoting Kurzmann v. State , 903 A.2d 702, 717 (Del. 2006)).

17 Id.

18 Longford

- Myers v. State , 2013 WL 593249, at *2 (Del. Feb. 13, 2013)

. 19 Johnson v. State , 2015 WL 5547236 (Del. Sept. 18, 2015) (citations omitted).5

NOW, THEREFORE, IT IS HEREBY ORDERED that Defendant’s

Motion for Modificat ion of Sentence is DENIED

.



# Jan R. Jurden

Jan R. Jurden, President Judge

Original to Prothonotary

cc: Thomas E. Wisher (SBI# 00637330 )

Daniel McBride

, DAG