ROBERT B. McCULLOUGH, Defendant Below-Appellant,
STATE OF DELAWARE, Plaintiff Below-Appellee.
Submitted: March 17, 2017
Below-Superior Court of the State of Delaware Cr. ID Nos.
1408018146 and 1408018135
STRINE, Chief Justice; VAUGHN, and SEITZ, Justices.
Collins J. Seitz, Jr. Justice.
16th day of May 2017, upon consideration of the
appellant's opening brief, the State's motion to
affirm, and the record below, it appears to the Court that:
appellant, Robert McCullough, filed this appeal from the
Superior Court's January 6, 2017 order sentencing him for
his second violation of probation (VOP). The State has filed
a motion to affirm the judgment below on the ground that it
is manifest on the face of McCullough's opening brief
that his appeal is without merit. We agree and affirm.
record reflects that McCullough pled guilty on May 19, 2015
to one count of Operating a Clandestine Drug Lab and one
count of Burglary in the Third Degree, which were charged
under two separate indictments. On the drug lab conviction,
the Superior Court immediately sentenced McCullough,
effective August 22, 2014, to fifteen years at Level V
imprisonment, suspended immediately for eighteen months at
Level II Teen Challenge. On the burglary conviction,
McCullough was sentenced to three years at Level V, suspended
immediately for one year at Level II probation.
After the Superior Court modified McCullough's sentence
on March 10, 2016 to add a zero tolerance provision for drug
use, McCullough was charged with his first VOP. On May 13,
2016, the Superior Court sentenced McCullough on his drug lab
conviction, effective April 25, 2016, to fifteen years at
Level V, suspended immediately for one year at Level IV
Crest, to be suspended upon successful completion of Level IV
for one year at Level III Crest Aftercare. The VOP sentence
on the burglary conviction did not change.
December 21, 2016, McCullough was charged with his second
VOP. The violation report alleged that McCullough had
reported to his Level III probation officer on December 14,
2016, within three days of his release from Level IV
supervision at the Morris Community Corrections Center
("MCCC"). McCullough told his probation officer
that he had used heroin that possibly had been laced with
cocaine while he was at MCCC. McCullough told his probation
officer that he had reported his drug use to correctional
officers at MCCC before he was required to provide a urine
sample. The probation officer was able to obtain
McCullough's urine screen results from MCCC. The results
indicated that McCullough had tested positive for multiple
narcotics on December 10, 2016. Moreover, the violation
report stated that McCullough signed an admission form on
December 20, 2016, admitting to his heroin use while under
Superior Court held a VOP hearing on January 6, 2017.
McCullough was represented by counsel. The Superior Court
found McCullough in violation and sentenced him on the drug
lab conviction, effective December 20, 2016, to fifteen years
at Level V incarceration, to be suspended upon successful
completion of the Key Program for one year at Level III
probation. On the burglary charge, the Superior Court again
sentenced McCullough to three years at Level V incarceration,
to be suspended for one year at Level III probation.
McCullough appeals his VOP sentence.
McCullough arguably raises three issues in his opening brief
on appeal. First, he contends that the Superior Court's
VOP sentence failed to credit him with all of the time that
he previously served in prison on his sentence. Second,
McCullough asserts that the Superior Court erred in failing
to do a case study before sentencing him. Finally, McCullough
argues that the evidence was insufficient to prove that he
violated his Level III probation.
order to prove that a defendant violated his probation, the
State must present some competent evidence to reasonably
satisfy the judge that the defendant's conduct has not
been as good as required by the conditions of his
probation. We review the trial court's finding of
a VOP for abuse of discretion. As the appealing party, the
appellant is required to provide this Court with a copy of
the transcript necessary to review any claims raised on
appeal. McCullough failed to request a transcript
of the VOP hearing for this appeal. Thus, to the extent
McCullough challenges the sufficiency of the evidence
presented at the VOP hearing, we are unable to review his
claim without a transcript of the hearing.
the extent McCullough is arguing that he could not be charged
with a violation by his Level III probation officer for a
drug test that he had failed while at Level IV, McCullough is
incorrect. The Superior Court's March 10, 2016 sentencing
order added a zero tolerance provision for drug use. That
condition applied to all levels of McCullough's sentence
and was reimposed when McCullough was sentenced for his first
VOP in May 2016. The Superior Court properly could find that
McCullough had committed his second VOP for drug use that he
admitted to engaging in on December 10, 2016 while he was at
McCullough also claims that the Superior Court erred by
sentencing him without first ordering a case study to
determine his treatment needs and by failing to credit him
with all of the time he previously served on his sentence.
This Court previously has held that the Superior Court is not
required to obtain a case study before sentencing a defendant
for a VOP. Moreover, McCullough did not raise his
credit time issue to the Superior Court in the first
instance. It appears from the face of the January 6,
2017 sentencing order that the Superior Court may not have
credited McCullough with time that he had previously served
at Level V on his ...