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Loper v. State6/18/2003
Submitted: April 2, 2003
ORDER
This 18th day of June 2003, upon consideration of the appellant's brief filed pursuant to Supreme Court Rule 26(c), his attorney's motion to withdraw, and the State's response thereto, it appears to the Court that:
(1) On October 18, 2002, the appellant, Michael Loper, was found guilty by the Superior Court of violation of probation (VOP). The Superior Court sentenced Loper to two years and three months of Level V imprisonment, suspended after successful completion of the Level V Greentree Program, for one year at Level IV Crest Supervision, suspended after successful completion, for one year at Level III probation. This is Loper's appeal.
(2) Loper's trial counsel has filed a brief and a motion to withdraw pursuant to Supreme Court Rule 26(c). The standard and scope of review is twofold. The Court must be satisfied that defense counsel has made a conscientious examination of the record and the law for claims that could arguably support the appeal. Second, the Court must conduct its own review of the record and determine whether the appeal is so totally devoid of at least arguably appealable issues that it can be decided without an adversary presentation.
(3) Loper's counsel asserts that, based upon a careful and complete examination of the record, there are no arguably appealable issues. By letter, Loper's counsel informed Loper of the provisions of Supreme Court Rule 26(c) and provided him with a copy of the motion to withdraw and the Rule 26(c) brief. Loper was also informed of his right to supplement his attorney's presentation. Loper responded with a brief that raises three issues for this Court's consideration. The State has responded to the position taken by Loper's counsel as well as to two of the three issues raised by Loper and has moved to affirm the Superior Court's judgment.
(4) Loper identifies three appellate issues for this Court's consideration: (i) the Department of Correction failed to enroll Loper in the Key Program, as the Superior Court had ordered as part of his original sentence; (ii) Loper's VOP conviction was based on reasons other than what were alleged in the violation report, and (iii) Loper's VOP hearing did not comply with the procedural requirements of Delaware Superior Court Criminal Rule 32.1 (Rule 32.1). Loper's claims are without merit.
(5) At the VOP hearing, Loper admitted the VOP and presented a defense for leniency in sentencing. Because Loper did not raise any of the three claims that he now raises on appeal, he has waived appellate review of the claims in the absence of plain error.
(6) On appeal, Loper complains that the Department of Correction did not place him in the Key Program, as the Superior Court had ordered as part of his original sentence in 2001. Loper's claim may be true, but it is unavailing.
In view of Loper's DUI history and his admission to the VOP, the Superior Court was well within its discretion when determining at the VOP hearing in 2002 that the Level V Greentree Program was a suitable level of supervision for Loper.
(7) There is no factual or legal basis for Loper's claim that he did not receive proper notice of the reasons for the VOP or that he was convicted of VOP for new or different reasons than those that were originally alleged. The written violation report alleged that Loper violated Condition 3 (failure to report to supervising probation officer) and Condition 9 (failure to comply with special probation conditions, including payment of fines, failure to make his intake appointment for Work Referral and failure to participate in the DUI program). The specifics of each of the tw
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