Washington v. State Of Delaware

This 5th day of January, 2016, upon consideration of the appellant’s opening brief, the appellee’s motion to affirm, and the record below, it appears to the Court that: (1) The appellant, Michael K. Washington, filed this appeal from the

Superior Court’s sentencing order for his sixth violation of probation (“VOP”). The State of Delaware has filed a motion to affirm the judgment below on the ground that it is manifest on the face of Washington’s opening brief that his appeal

is without merit. We agree and affirm. The record reflects that, on June 7, 2013, Washington pled guilty to

Possession of a Firearm by a Person Prohibited. Washington was sentenced, effective June 7, 2013, with credit for twenty-nine days, to five years of Level V incarceration, suspended for three months of Level IV Home Confinement,

followed by one year of Level III probation. Washington did not appeal the Superior Court’s judgment.

(3) On July 19, 2013, the Superior Court found that Washington had committed his first VOP. Effective July 19, 2013, Washington was sentenced to four years and ten months of Level V incarceration, suspended for thirty days at

the Level IV VOP Center, followed by one year of Level III probation.

Washington did not appeal the Superior Court’s judgment.

(4) On February 20, 2014, the Superior Court found that Washington had

committed his second VOP. Effective February 20, 2014, Washington was

sentenced to four years and ten months of Level V incarceration, suspended for

one year of Level IV Home Confinement, followed by one year of Level III

probation. Washington did not appeal the Superior Court’s judgment.

(5) On August 19, 2014, the Superior Court found that Washington had

committed his third VOP. Effective August 19, 2014, Washington was sentenced

to four years of Level V incarceration, suspended for ninety days at the Level IV

VOP Center, followed by one year of Level III probation. Washington did not

appeal the Superior Court’s judgment.

(6) On September 25, 2014, the Superior Court found that Washington

had committed his fourth VOP. Effective September 25, 2014, Washington was

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sentenced to three years and six months of Level V incarceration, suspended after

six months for one year of Level III probation. Washington did not appeal the

Superior Court’s judgment.

(7) On June 19, 2015, the Superior Court found that Washington had

committed his fifth VOP. Effective June 19, 2015, Washington was sentenced to

two years and eleven months of Level V incarceration, suspended for six months at

the Level IV VOP Center. Washington filed an appeal, but the appeal was dismissed after Washington failed to file an opening brief.1

(8) On September 17, 2015, the Superior Court found that Washington

had committed his sixth VOP. Effective September 17, 2015, Washington was

sentenced to nine months of Level V incarceration with no probation to follow.

This appeal followed. In his opening brief, Washington claims that the Superior

Court failed to give him credit for 101 days he served between June 8, 2015 and

September 17, 2015. This argument is without merit.

(9) Our appellate review of a sentence is extremely limited and generally

ends upon a determination that the sentence is within the statutory limits prescribed by the legislature.2 In sentencing a defendant for a VOP, the Superior Court can

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

1 Washington v. State, 2015 WL 6164070 (Del. Oct. 16, 2015). 2 Kurzmann v. State, 903 A.2d 702, 714 (Del. 2006).

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time remaining to be served on the original sentence or any lesser sentence.3 A

defendant is entitled to Level V credit for time previously served on an underlying charge at Level V or a Level IV VOP Center.4

(10) At the time of his sixth VOP in September 2015, Washington was

serving a June 19, 2015 sentence of two years and eleven months of Level V

incarceration, suspended for six months at the Level IV VOP Center. The Superior

Court’s September 17, 2015 sentencing order reduced Washington’s Level V time

to nine months and stated that the sentence took into consideration all time

previously served.

The reduction in Level V time more than accounted for any time Washington served between June 8, 2015 and September 17, 2015. Accordingly, the Superior Court did not err in sentencing Washington to nine months of Level V incarceration for his sixth VOP.

NOW, THEREFORE, IT IS ORDERED that the motion to affirm is GRANTED and the judgment of the Superior Court is AFFIRMED.