Submitted February 20, 2014
Case Closed April 10, 2014.
This decision has been designated as "Table of Decisions Without Published Opinions." in the Atlantic Reporter.
Court Below--Superior Court of the State of Delaware, in and for Sussex County. Cr. ID Nos. 0609004429 and 0603019825.
Before BERGER, JACOBS, and RIDGELY, Justices.
Jack B. Jacobs, Justice
This 25th day of March 2014, upon consideration of the appellant's opening brief, the State's motion to affirm, the parties' supplemental memoranda, and the record below, it appears to the Court that:
(1) The defendant-appellant, Thomas Spencer (" Spencer" ), appeals from a Superior Court order dated September 26, 2013, which sentenced Spencer for his fourth violation of probation (" VOP" ). The Superior Court modified that order on September 30, 2014 to give Spencer credit for additional time served and to add a six-month transition period, pursuant to 11 Del. C . § 4204(l), requiring Spencer to spend an additional six months at the Level IV VOP Center. The State has filed a motion to affirm the Superior Court's judgment. We asked for supplemental memoranda concerning the propriety of the six-month transition period at the Level IV VOP Center. Although we find no merit to the first three issues that Spencer has raised in his opening brief on appeal, we nonetheless hold that the Superior Court must correct its sentencing order to impose a six-month transition period that is less restrictive than the Level IV VOP Center.
(2) The record reflects that Spencer pled guilty on November 15, 2006 in the Kent County Superior Court to one count of DUI (Fourth Offense). The Superior Court sentenced him on January 10, 2007 to four years at Level V incarceration, to be suspended after serving two years in prison for six months at Level III probation. On January 17, 2007, Spencer pled guilty to another count of DUI (Fourth Offense) and was sentenced by the Sussex County Superior Court to five years at Level V incarceration (with credit for six days served), to be suspended after serving nine months in prison for eighteen months at Level III probation.
(3) On July 8, 2009, the cases were consolidated after Spencer was charged with violating probation. On August 4, 2009, the Superior Court sentenced Spencer for his first VOP associated with his Sussex County DUI to four years at Level V, to be suspended upon successful completion of the Level V Key Program for Level IV Residential Drug Treatment, to be suspended upon successful completion of drug treatment for eighteen months at Level III probation. On the VOP associated with his Kent County DUI, the Superior Court sentenced Spencer to two years at Level V to be suspended entirely for eighteen months at Level III probation.
(4) On September 23, 2011, the Superior Court sentenced Spencer for his second VOP. On the Sussex County DUI, the Superior Court sentenced Spencer to two years and six months at Level V incarceration, with credit for twenty-seven days served, suspended for nine months at Level IV Home Confinement followed by fifteen months at Level III probation. On his Kent County DUI, the Superior Court sentenced Spencer to two years at Level V suspended entirely for eighteen months at level III probation.
(5) On July 17, 2012, the Superior Court found Spencer guilty of his third VOP. The judge sentenced Spencer on his Sussex County DUI charge to two years at Level V incarceration, to be suspended after serving eighteen months and upon successful completion of the Key Program, with no further probation to follow. On the Kent County DUI charge, the Superior Court sentenced Spencer to two years at Level V incarceration, to be suspended entirely for one year at Level IV Residential Treatment, with the balance of the sentence to be suspended upon Spencer's ...