State v. Lewis

• Court: Superior Court of Delaware
• Decided: November 9, 2020
• Docket: 1909006789
• Status: Published

Opinion

IN THE SUPERIOR COURT OF THE STATE OF DELAWARE

STATE OF DELAWARE ) ) v. ) No. 1909006789 ) LAVAR LEWIS, ) ) Defendant. )

Submitted: August 19, 2020 Decided: November 9, 2020

ORDER

Upon Review of Lavar Lewis’ Motion for Review of Commissioner’s Order- Affirmed

Defendant Lavar Lewis was indicted in this Court for robbery and related

criminal charges. After Lewis was detained in default of bail, he filed a motion that,

among other things, challenged the constitutionality of Delaware’s bail statute.

While the motion was pending, Lewis’s bail was reduced, he posted a bond, and he

was released from detention. Consequently, the Superior Court Commissioner

assigned to hear Lewis’s motion denied it as moot.

Lewis asks this Court to review the Commissioner’s order, arguing the public

interest exception to the mootness doctrine should be applied so the Court may

consider the merits of Lewis’s argument. Lewis also challenges the Commissioner’s

order on the grounds that it violated his right to due process and his right to counsel.

Lewis’s motion requires the Court to determine whether (i) the issue of the bail

1 statute’s constitutionality evades review; (ii) due process required the Commissioner

to hold oral argument in this case; and (iii) the absence of oral argument denied

defense counsel the opportunity to advocate for Lewis. For the reasons that follow,

the Commissioner’s order is affirmed.

FACTUAL & PROCEDURAL BACKGROUND

1. On September 11, 2019, Defendant Lavar Lewis was arrested and

charged with Robbery First Degree, Wearing a Disguise, and Misdemeanor Theft. 1

Lewis allegedly robbed a Burger King restaurant while wearing a face covering and

displaying what appeared to be a hand gun. 2 A witness identified Lewis as the

perpetrator; this identification later was supported by witness statements and video

surveillance.3 Following his arrest, police officers executed a search warrant on

Lewis’s home and found $1,181.00 in cash along with two BB guns that appeared

to match the gun seen in surveillance footage of the incident.4

2. Lewis was presented to the Justice of the Peace Court, and a Magistrate

set bail at $27,000.00 cash along with conditions for supervised release. 5 Lewis was

detained in default of bail.6 After conferring with counsel, Lewis waived his right

1 Comm’r Order at 1. 2 Id. 3 Id. 4 Id. at 1-2. 5 Id. at 2. 6 Id. 2 to a preliminary hearing in the Court of Common Pleas on September 18, 2019.7

Lewis also waived his right to a bail hearing at that time, and his bail remained set

at $27,000.8

3. After Lewis’s case was accepted in this Court, his counsel filed a

Motion for Reduction of Bail (the “Bail Motion”). 9 Lewis’s Bail Motion raised a

number of arguments, including that Delaware’s bail statute is unconstitutional. 10

On December 4, 2019, the Court held a hearing on Lewis’s arguments other than the

arguments regarding constitutionality and denied the request to modify bail, finding

the bail was reasonable and appropriate under the circumstances. 11 The Court

ordered briefing on the constitutional issues raised in the Bail Motion.12

4. On March 17, 2020, after he had pleaded guilty and while he was

awaiting sentencing, Lewis’s bail was reduced to $20,000 secured. Lewis then

posted bail and was released from custody. 13 On May 14, 2020, the Commissioner

issued an Order (“the Order”), denying Lewis’s Bail Motion as moot.14 The

7 Id. 8 Id. 9 Id. 10 Id. at 2-3. 11 Id. at 3. 12 Id. at 4. 13 Id. at 5-6. The commissioner who reduced Lewis’s bail on March 17th was not the commissioner who was considering his Bail Motion discussed above. It does not appear that Lewis’s counsel advised the commissioner who was considering the March 17 th motion that another bail motion already was pending before another commissioner. 14 Id. at 13-15. 3 Commissioner reasoned that, because his bail was reduced and he was not detained,

Lewis had obtained the relief he sought and there no longer was a live controversy. 15

On May 22, 2020, Lewis filed this Motion for Review of the Commissioner’s Order.

In his Motion for Review, Lewis argues the Commissioner should have applied the

public interest exception to mootness.16 Lewis also contends the Order violated his

rights to due process and counsel. 17 The State argues the bail issue is moot because

Lewis obtained the reduced bail he sought.18 The State also asserts Lewis was

afforded adequate due process, and he waived his argument regarding the Sixth

Amendment by failing to cite any supporting case law.19

ANALYSIS

5. The parties dispute the standard of review applicable to this Court’s

review of the Commissioner’s Order. The State maintains that, as a decision to

modify bail, the Order should be reviewed under the clear error standard.20 Lewis,

15 Id. 16 Lewis argued to the Commissioner that the Bail Motion was not moot because it raised an issue of public interest that would arise in the future but continually evade review. See Def.’s Mot., Ex. B, 7-18. In Lewis’s Motion for Review, he argued the Commissioner erred in concluding the issue would not evade review in the future. Def.’s Mot. at 4-16. In his reply brief, however, Lewis argued for the first time that the Court need not consider the “evade review” question because the public interest exception to the mootness doctrine does not require such a finding. The Court finds that Defendant waived the argument that “evading review” is not a necessary element to the public interest exception by failing to raise that issue in a timely manner before the Commissioner or in his Motion for Review. And, in any event, Delaware precedent requires a finding that an issue will evade review before the public interest exception to mootness will apply. See n.27, infra. 17 Id. at 16-17. 18 State’s Resp. at 14. 19 Id. at 13-20. 20 Id. at 7 (citing State v. Perkins, 2004 WL 1172894, AT *1 (Del. Super. May 21, 2004)). 4 however, argues he is asserting claims of legal error that should be reviewed de

novo.21 The State is correct that “a commissioner’s decision to modify bail is entitled

to deference under the law of the case doctrine.”22 The Order, however, did not

reach the merits of the bail issue. 23 In an appeal, this Court reviews questions of law

de novo and reviews questions of fact under the “substantial evidence” standard. 24

Mootness and the other constitutional issues presented by this case are questions of

law, so the Court has reviewed the Order de novo.

I. The Commissioner correctly determined the bail issue is moot. 6. “Mootness arises when controversy between the parties no longer

exists such that a court can no longer grant relief in the matter.” 25 A court’s function

is to consider live controversies, and for that reason courts generally will not

consider issues that become moot before the court issues its decision.26

7. The public interest exception to the mootness doctrine applies when a

case raises a question of public importance but that question is likely to evade

review.27 The parties dispute how the “evades review” element should be analyzed.

Lewis argues that a case evades review when the controversy resolves before the

21 Def.’s Reply at 2. 22 State v. Perkins, 2004 WL 1172894, at *1 (2004). 23 Comm’r Order at 13-16. 24 Rittenour v. Astropower, Inc., 2005 WL 4051539, at *1 (Del. Super. Dec. 29, 2005). 25 Mentor Graphics Corp. v. Shapiro, 818 A.2d 959, 963 (Del. 2003). 26 State Farm Mut. Auto. Ins. Co. v. Davis, 80 A.3d 628, 632 (Del. 2013). 27 Wooten v. State, 2003 WL 22866416, at *1 (Del. Nov. 24, 2003) (citing Radulski v. Delaware State Hosp., 541 A.2d 562, 566 (Del. 1988)). 5 case proceeds through the entire course of litigation, including appeal to the

Delaware Supreme Court. The State, however, asserts the proper question is

whether the matter would evade review before this Court.

8. Lewis is correct that, when considering if an issue will “evade review,”

the Court must assess whether the case could be subjected to full appellate review

before becoming moot. When applying the public interest exception, courts

implicitly have analyzed whether complete appellate review of an issue is possible.

In Sosna v. Iowa, the appellant filed a class action challenging the constitutionality

of a one-year residency requirement for filing a divorce petition. 28 While the

litigation was proceeding, the one-year residency period elapsed for the appellant.29

The United States Supreme Court pointed out this was not surprising because “in

many cases, appellate review [would] not be completed until after the plaintiff ha[d]

satisfied the residency requirement.” 30 The court ruled the case was not moot

because a controversy still might exist as to some members of the class.31 Similarly,

in Smith v. State, the Delaware Supreme Court was asked to review an involuntary

commitment order after the appellant already had been released.32 The appellant

argued the court should apply the public interest exception because an involuntary

28 Sosna v. Iowa, 419 U.S. 393, 395-96 (1975). 29 Id. at 399. 30 Id. at 398 (emphasis added). 31 Id. at 402. 32 Smith v. State, 2018 WL 6202281, at *1 (Del. Nov. 28, 2018). 6 commitment order typically expires after three months, which does not give the

challenger time for full appellate review. 33 The court considered whether the issue

would evade full appellate review but determined it would not because proceedings

in this Court and the Supreme Court could be expedited when necessary. 34 Even

taking into account, however, the time necessary to pursue an appeal, the bail issue

will not evade review for the reasons set forth below. Accordingly, the public

interest exception does not apply, and Lewis’s bail challenge is moot.

A. This issue will not evade review in the future because superior tribunal review is available through a writ of prohibition. 9. Lewis claims the bail statute’s constitutionality will continue to evade

review given the temporary nature of pretrial detention. Lewis points out a bail order

is interlocutory, and interlocutory appeals are prohibited in criminal cases.35 Lewis

argues that by the time a case can be appealed, a criminal defendant no longer will

be subject to pretrial detention. This argument is incorrect, however, because in

future cases, a criminal defendant could obtain review of a decision regarding the

constitutionality of the bail statute through a writ of prohibition. 36

33 Id. at *2. 34 Id. 35 Steigler v. Super. Ct., 252 A.2d 300, 302-03 (Del. 1969). 36 In a footnote, the Commissioner pointed out that, in addition to a writ of prohibition, “other opportunities [for review] may be available.” Comm’r Order at 18, n.44. The Commissioner specifically mentioned the possibility of a class action claim, an advisory opinion, or a writ of certiorari. Lewis spends substantial time in his Motion for Review challenging the viability of each of these options. But those arguments are themselves moot based on this Court’s finding that a writ of prohibition would be available. The Court therefore need not consider those additional arguments. 7 10. A writ of prohibition can be issued where a court lacks jurisdiction to

proceed because it violated a defendant’s constitutional rights and there is no

adequate remedy at law.37 In Steigler v. Superior Court, the Delaware Supreme

Court held that a direct appeal for a bail order was not possible because it would be

an impermissible interlocutory appeal.38 The Court, however, ruled that a

constitutional challenge to a bail order is one situation where a writ of prohibition is

appropriate:

In the instant case…we have held that there is no right of appeal to this Court from an order denying bail. There is, therefore, no adequate remedy at law to review such an order and [a writ of] prohibition will lie to bar the lower Court from proceeding thereunder in violation of the defendant’s fundamental constitutional rights. 39

Lewis argues Steigler is not controlling here, and this Court instead should apply

Hodson v. Superior Court.40 In Hodson, the appellant challenged his indictment,

asserting that the statute on which it was based was unconstitutional. 41 The

Delaware Supreme Court denied the defendant’s request for a writ of prohibition,

finding it was being used as a tool to evade the limitations on interlocutory appeal.42

37 Id. at 303. 38 Id. at 302-03 (citing Art. 4 Del. Const. s 11(1)(b)). 39 Id. at 303. 40 Def.’s Mot. at 9; Hodson v. Super. Ct., 239 A.2d 222 (Del. 1968). 41 Id. at 223-24. 42 Id. at 224. 8 The Hodson court determined that a writ of prohibition was not appropriate because

the Superior Court’s lack of jurisdiction was not apparent from the record.43

11. Lewis ignores the striking similarities between Steigler and this case.

The defendant in Steigler challenged his bail on the basis that it violated his

constitutional rights, which is precisely the argument Lewis makes here.44 Steigler

plainly establishes that a writ of prohibition is available to address constitutional

issues surrounding bail because the bar against interlocutory appeals otherwise

would cause the issue to evade review. There is no material distinction between this

case and Steigler, and other defendants seeking to challenge the constitutionality of

Delaware’s bail statute will have access to appellate review in the Delaware Supreme

Court through a writ of prohibition. Accordingly, the bail issue will not evade

review.

B. This issue is unlikely to evade review in the future because Lewis’s own actions caused many of the delays in this case.

12. The Commissioner also held that Lewis’s own actions contributed to

the delays in the case, and future cases challenging the bail statute’s constitutionality

likely will benefit from “concise briefing and expeditious review,” allowing the issue

to be resolved before the underlying criminal charges are resolved. 45 The record

43 Id. 44 Steigler, 252 A.2d at 302. 45 Comm’r Order at 17. 9 supports the Commissioner’s conclusion that Lewis created or exacerbated

numerous delays in the Bail Motion’s resolution. First, when Lewis filed his reply

in further support of his Bail Motion, he raised for the first time a due process

argument, which necessitated the State filing a Sur-Reply and prevented the Court

from considering that issue at the December 4th hearing.46 Second, on December

12, 2019, Lewis requested a continuance of the hearing date to allow for the

presentation of expert testimony; the Court then held a teleconference on December

30, 2019 to address the continuance request.47 The docket reflects a series of

communications between the Court and Lewis’s counsel in which Lewis’s counsel

sought further to delay a hearing on the bail motion. 48 Finally, on March 5, 2020,

Lewis filed another motion for reduction of bail that was granted on March 17,

2020.49 This had two effects: (i) Lewis posted bail and no longer was incarcerated;

and (ii) the parties then were required to submit additional briefing on whether the

bail issue was moot.50

13. This case is analogous to Radulski v. Delaware State Hospital, where

the Court declined to apply the public interest exception to an involuntary

commitment appeal.51 Although it acknowledged that involuntary commitment is

46 Comm’r Order at 4. 47 Id. 48 D.I. #26-33, #15. 49 Comm’r Order at 5. 50 Id. 51 Radulski, 541 A.2d at 566. 10 of a temporary nature, the Court concluded the issue would not evade review in

future cases because attorneys could take advantage of expedited scheduling under

Supreme Court Rule 25. 52 According to the Court, the delays that led to the issue

becoming moot entirely were attributable to the petitioner’s attorney: “[n]ot only did

counsel fail to avail themselves of [the] expedited procedure but they also sought

numerous time extensions that delayed the hearing of this appeal.”53 As in Radulski,

the defense slowed the Bail Motion’s resolution and appeal by seeking a continuance

and raising new issues that further compounded the delay. If future defendants seek

expedited review and avoid unnecessarily delaying litigation, there should be no

reason why the bail issue cannot be resolved before a defendant is released from

pretrial detention.

II. The Commissioner’s Order did not violate Lewis’s due process rights.54

14. Lewis next contends the Court should reverse the Order because the

proceedings before the Commissioner did not afford him adequate due process.

Lewis’s theory is that because the Commissioner ordered simultaneous briefing and

did not hold oral arguments on the mootness issue, Lewis was not given a reasonable

52 Id. (“[T]he issue presented by this appeal…is capable of repetition. However, such repetition will not evade review if, in the future, attorneys utilize the procedures set forth in [the Supreme] Court’s Rules.”). 53 Id. 54 It is unclear if Lewis abandoned his due process claim. He did not address it in his reply brief, despite discussing all other relevant issues. The Court nevertheless will address the due process claim. 11 opportunity to respond to the State’s arguments or the Commissioner’s conclusions

regarding jurisdiction. The State, however, argues due process did not apply to the

proceedings because Lewis was not deprived of a protected liberty or property

interest. Nowhere in Lewis’s briefing does he identify any deprivation that would

entitle him to due process. “The requirements of procedural due process apply only

to the deprivation of interests encompassed by the Fourteenth Amendment’s

protection of liberty and property.”55 The list of protected interests is not infinite.56

Lewis was not deprived of a protected liberty or property interest; by the time the

Commissioner ordered briefing on the mootness issue, Lewis had posted the $20,000

modified bail and no longer was detained. He therefore was not facing any

deprivation of liberty or property and was not entitled to any procedural due process.

15. Even assuming arguendo that the Order deprived Lewis of some

protected interest, his due process rights were not violated by the Commissioner’s

decision to forego oral argument. “Due process is flexible and calls for such

procedural protections as the particular situation demands.” 57 Whether procedures

provide sufficient due process depends on three factors: “(1) the private interest that

will be affected by the official action; (2) the risk of an erroneous deprivation of such

interest through the procedures used…; and (3) the Government’s interest, including

55 Board of Regents of State College v. Roth, 408 U.S. 564, 570 (1972). 56 Id. 57 Morrissey v. Brewer, 408 U.S. 471, 481 (1972). 12 the fiscal and administrative burdens that the additional or substitute procedures

would entail.”58 In assessing what process is due, “substantial weight must be given

to the good-faith judgments” of those persons who determined the challenged

procedures were adequate. 59 The United States Supreme Court explicitly has

acknowledged that due process does not require the Court to hear oral argument on

every question of law.60

16. The record demonstrates Lewis was afforded adequate due process. His

briefing to the Commissioner was drafted by counsel, an educated and licensed

attorney. Lewis’s counsel also orally discussed mootness with the Commissioner

and even corresponded with the Commissioner about particular case law he should

address. The State and defense counsel exchanged draft briefs before the filing

deadline, removing the possibility of any unfair surprise. Given the high level of

involvement from Lewis’s counsel and from the Commissioner, the risk of Lewis’s

rights erroneously being deprived was very low.

58 Matthews v. Eldridge, 424 U.S. 319, 321 (1976). 59 Id. at 349. 60 FCC v. WJR, 338 U.S. 265, 274-75 (1949) (“Taken at its literal and explicit import, the Court's broad constitutional ruling cannot be sustained. So taken, it would require oral argument upon every question of law…This would be regardless of whether the legal question were substantial or insubstantial[.])” See also Del. Super. Ct. Crim. R. 57(d), Del. Super. Ct. Civ. R. 78(c). 13 III. The Commissioner’s Order did not violate Lewis’s Sixth Amendment right to counsel.61

17. Lewis cites no facts supporting his Sixth Amendment argument. He

merely states, “counsel was not provided an opportunity to advocate for Defendant’s

position[.]”62 As discussed in the preceding section, there is no constitutional right

to oral argument. The Commissioner afforded Lewis’s counsel ample opportunity

to advocate Lewis’s position both in formal briefing and in email correspondence

with the Court. Further, Lewis has not introduced any facts or case law

demonstrating his right to counsel was violated. Reviewing the record at hand, this

argument has no merit.

For the reasons stated above, the Order of the Commissioner is AFFIRMED.

IT IS SO ORDERED.

/s/ Abigail M. LeGrow Abigail M. LeGrow, Judge

61 It is unclear if Lewis abandoned his Sixth Amendment claim. He did not address the issue in his reply brief, despite discussing all other relevant issues. Nevertheless, this Court will address the Sixth Amendment argument. 62 Def.’s Mot. at 17. 14