Hartmann v. State ( 2019 )

IN THE SUPREME COURT OF THE STATE OF DELAWARE
DETLEF HARTMANN, §
§
Defendant Below, § No. 421, 2019
Appellant, §
§ Court Below—Superior Court
v. § of the State of Delaware
§
STATE OF DELAWARE, § Cr. ID No. 9912000027 (K)
§
Plaintiff Below, §
Appellee. §
Submitted: November 5, 2019
Decided: December 12, 2019
Before SEITZ, Chief Justice; VALIHURA, and TRAYNOR, Justices.
ORDER
Upon consideration of the appellant’s opening brief, the appellee’s motion to
affirm,1 and the record below, it appears to the Court that:
(1) The appellant, Detlef Hartmann, filed this appeal from the Superior
Court’s September 10, 2019 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 Hartmann’s opening brief that the
appeal is without merit. We agree and affirm.
1
Hartmann requested an extension to file a reply to the motion to affirm, but a response to a motion
to affirm is not permitted unless requested by the Court. Supr. Ct. R. 25(a). The Court did not
request a response to the motion to affirm and finds no reason to request a response.
(2) The record reflects that, in March 2001, Hartmann pled guilty to second
degree unlawful sexual intercourse and two counts of unlawful sexual contact. The
Superior Court sentenced Hartmann as follows: (i) for unlawful sexual intercourse,
effective December 1, 1999, fifteen years of Level V incarceration, suspended after
ten years for decreasing levels of supervision; and (ii) for each count of unlawful
sexual contact, two years of Level V incarceration suspended for two years of Level
II probation. The probationary terms were consecutive.
(3) The Superior Court also ordered that Hartmann not have any contact
with children under the age of eighteen, except for his biological children. The no-
contact provision was later modified to include any biological children adopted by
another person after the termination of Hartmann’s parental rights. Hartmann did
not appeal his convictions or original sentence.
(4) On April 10, 2012, the Superior Court found that Hartmann had
violated his probation. The Superior Court sentenced Hartmann as follows: (i) for
unlawful sexual intercourse, effective May 18, 2011, five years of Level V
incarceration, suspended after four years and successful completion of a Sexual
Adjustment Program for one year of Level III probation; and (ii) for each count of
unlawful sexual contact, two years of Level V incarceration suspended for two years
of Level III probation. The probationary terms were consecutive. All previous
2
terms and conditions of Hartmann’s sentence were re-imposed. This Court affirmed
the Superior Court’s judgment on direct appeal.2
(5) On August 12, 2019, an administrative warrant was filed for
Hartmann’s VOP. The VOP report alleged that Hartmann had violated his probation
by having sexual contact with a minor. After a contested hearing on September 10,
2019, the Superior Court found that Hartmann had violated his probation. The
Superior Court sentenced Hartmann as follows: (i) for one count of unlawful sexual
contact, effective August 12, 2019, two years of the Level V Transitions Sex
Offender Program; and (ii) for the other count of unlawful sexual contact, two years
of Level V incarceration, suspended after one year and successful completion of the
Transitions Sex Offender Program, for two years of Level III probation. This appeal
followed.
(6) In his opening brief on appeal, Hartmann argues that: (i) his 2001
convictions should be invalidated; (ii) there was insufficient evidence to support the
Superior Court’s finding of a VOP; (iii) the State failed to represent all members of
the public, including Hartmann, in the VOP proceedings; and (iv) his counsel at the
VOP hearing was ineffective. We will not consider Hartmann’s ineffective
assistance of VOP counsel claims for the first time on direct appeal.3
2
Hartmann v. State, 2013 WL 434052 (Del. Feb. 4, 2013).
3
Wolford v. State, 2015 WL 745696, at *2 (Del. Feb. 19, 2015).
3
(7) Hartmann challenges his original convictions on the grounds that he
was a member of a protected class and that his counsel was ineffective. These claims
are not justiciable in this appeal. If Hartmann wished to challenge his 2001
convictions, he needed to do that in a direct appeal or a motion for postconviction
relief under Superior Court Criminal Rule 61. He cannot collaterally attack his 2001
convictions in an appeal from his 2019 VOP.4
(8) Hartmann next argues that there was insufficient evidence to support
the Superior Court’s finding that he violated his probation. He also contends that
the State only offered hearsay to show a VOP. These claims are without merit.
(9) In a VOP hearing, unlike a criminal trial, the State is only required to
prove by a preponderance of the evidence that the defendant violated his probation.5
“To do so the State must present ‘some competent evidence’ to ‘reasonably satisfy
the judge that the conduct of the probationer has not been as good as required by the
conditions of probation.’”6 The rules of evidence are relaxed in a VOP hearing, and
hearsay is admissible.7 At Hartmann’s VOP hearing, the sex offender conditions
that Hartmann signed upon his release from incarceration to probation were admitted
4
See, e.g., Taylor v. State, 2013 WL 1489392, at *1 (Del. Apr. 10, 2013) (holding that validity of
previous guilty pleas was not justiciable in appeal from VOP).
5
Kurzmann v. State, 903 A.2d 702, 716 (Del. 2006).
6
Id. (quoting Collins v. State, 897 A.2d 159, 160 (Del. 2006)).
7
Id.
4
into evidence. These conditions included a requirement that Hartmann have no
contact with anyone under the age of eighteen.
(10) The director of an outpatient sex offender program testified that, in
August 2019, Hartmann stated during a group therapy session that someone he had
picked up at a local coffee shop and had sexual contact with six months earlier had
turned out to be thirteen to sixteen years old, not an adult like he originally thought.
This was reported to Hartmann’s probation officer. Hartmann’s probation officer
testified that when she spoke to Hartmann, he admitted that he had sexual contact
with someone who said they were an adult, but turned out to be thirteen to fifteen
years old. She also testified that she was aware Hartmann was spending a significant
amount of time at a local coffee shop from his GPS tracking as a Tier III sex offender
and her conversations with him.
(11) Contrary to Hartmann’s contentions, his statements were not hearsay.
“A statement offered against a party which is his own statement, is an admission by
a party-opponent and is not hearsay.”8 In light of Hartmann’s admissions, there was
sufficient evidence to support the Superior Court’s finding that Hartmann had
violated his probation. To the extent Hartmann argues that the State had to file new
8
Barr v. Div. of Fam. Servs., 974 A.2d 88, 96 (Del. 2009) (citing D.R.E. 801(d)(2)(A).
5
criminal charges against him to pursue VOP proceedings, he is mistaken.9 Finally,
having reviewed the record of the VOP proceedings, we conclude that there is no
merit to Hartmann’s claim that the State violated a duty to the public or him in those
proceedings.
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/ Collins J. Seitz, Jr.
Chief Justice
9
Kurzmann, 903 A.2d at 717 (rejecting defendant’s argument that the State was required to
charge and prosecute him for a crime arising out of conduct for which the State could also
proceed in a VOP hearing).
6