Pernot v. State

• Court: Supreme Court of Delaware
• Decided: January 14, 2019
• Docket: 105, 2018
• Status: Published

Opinion

IN THE SUPREME COURT OF THE STATE OF DELAWARE

CHARLES W. PERNOT, § § Defendant Below, § No. 105, 2018 Appellant, § § Court Below—Superior Court v. § of the State of Delaware § STATE OF DELAWARE, § Cr. ID No. 1703001397 (K) § Plaintiff Below, § Appellee. §

Submitted: December 5, 2018 Decided: January 14, 2019

Before STRINE, Chief Justice; SEITZ and TRAYNOR, Justices.

ORDER

After consideration of the appellant’s opening brief, the appellee’s motion to

affirm, the supplemental submissions, and the record on appeal, it appears to the

Court that:

(1) The appellant, Charles W. Pernot, filed this appeal from a Superior

Court order sentencing him for a violation of probation (“VOP”). The State of

Delaware has moved to affirm the Superior Court’s judgment on the ground that it

is manifest on the face of Pernot’s opening brief that the appeal is without merit. We

agree and affirm.

(2) The record reflects that, on September 5, 2017, Pernot pleaded guilty

to Drug Dealing in exchange for the dismissal of other drug-related charges. The Superior Court sentenced Pernot to eight years of Level V incarceration, suspended

for six months of Level IV work release, followed by one year of Level III probation.

The sentencing order required Pernot to be evaluated for substance abuse and follow

any treatment recommendations. Pernot was to be evaluated and monitored by the

Treatment Access Center (“TASC”).

(3) On January 22, 2018, an administrative warrant was filed for Pernot’s

VOP. The VOP report alleged that Pernot violated the terms of his probation and

Morris Community Center regulations by possessing contraband, including two bags

of synthetic marijuana, and sexually harassing a female counselor. After a VOP

hearing on February 12, 2018, the Superior Court found that Pernot had violated his

probation. The Superior Court sentenced Pernot to seven years and eleven months

of Level V incarceration suspended after successful completion of the Transitions

program and Level V Key Crest, followed by one year of Level IV Crest and one

year of Level III aftercare. This appeal followed.

(4) In his opening brief on appeal, Pernot argues that: (i) the Superior Court

erred in denying his request for a transcript of the VOP hearing at State expense; (ii)

his counsel at the VOP hearing was ineffective; (iii) the TASC worker falsely stated

at the VOP hearing that he admitted to using cocaine in December 2017 and that he

had not dealt with his substance abuse issues; and (iii) the probation officer had no

basis to recommend that he complete the Transitions program, which was longer

2 than indicated at the VOP hearing. Pernot’s claims regarding the transcript are moot

because this Court ordered preparation of the transcript. Pernot received a copy of

the transcript and filed a supplemental opening brief. In his supplemental opening

brief, Pernot argues that the transcript supports his claims. He is mistaken.

(5) The transcript reflects that Pernot did not dispute that he violated his

probation by possessing contraband, he understood that his probation officer

recommended completion of the Transitions program, and he agreed to complete the

Transitions program. Pernot objected to the Key Crest program, stating that he had

already done the program and had not used drugs since 2009. Pernot claims that the

TASC worker falsely stated that he admitted to using drugs in December 2017, but

in fact she stated that he had previously admitted to using drugs as late as December

2016. The Superior Court, as the trier of fact, was responsible for determining

witness credibility and resolving any conflicts in the testimony. 1 The record does

not reflect any error or abuse of discretion by the Superior Court judge in finding the

TASC worker was more credible than Pernot.

(6) As to the length of the Transitions program, the transcript of the VOP

hearing reflects that the probation officer was not sure how long it would take to

complete the program, but thought it might take less than a year. Pernot’s counsel

1 Greathouse v. State, 2002 WL 1012673, at *2 (Del. May 10, 2002) (citing Tyre v. State, 412 A.2d 326, 330 (Del.1980)). 3 informed the Superior Court that there was a significant waiting period to enter the

program. To the extent Pernot claims that the Superior Court ordered him to

complete the Transitions program under the mistaken belief that he would only need

to spend a year at Level V in order to do so, the record does not support this claim.

(7) In sentencing Pernot for his VOP, the Superior Court was authorized to

impose any period of incarceration up to and including the balance of the Level V

time remaining to be served on the original sentence. 2 The Superior Court’s VOP

sentence did not exceed the Level V time remaining to be served on Pernot’s original

sentence. We will not consider Pernot’s ineffective assistance of counsel claims for

the first time on direct appeal. 3

NOW, THEREFORE, IT IS ORDERED that the motion to affirm is

GRANTED and the judgment of the Superior Court is AFFIRMED.

BY THE COURT:

/s/ Gary F. Traynor Justice

2 11 Del. C. § 4334(c). 3 Wolford v. State, 2015 WL 745696, at *2 (Del. Feb. 19, 2015); Desmond v. State, 654 A.2d 821, 829 (Del. 1994). 4