Submitted: May 16, 2017
Below-Superior Court of the State of Delaware Cr. ID
STRINE, Chief Justice; VALIHURA and VAUGHN, Justices.
L. VALIHURA, JUSTICE
6th day of July 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, Carlton Kilson, filed this appeal from the
Superior Court's February 9, 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 Kilson's opening brief
that his appeal is without merit. We agree and affirm.
record reflects that Kilson pled guilty in June 2014 to
Assault in the Second Degree and Possession of a Deadly
Weapon During the Commission of a Felony. On July 10, 2014,
the Superior Court sentenced Kilson on the assault charge,
effective February 26, 2013, to eight years at Level V
incarceration, suspended after two years for six years at
Level IV, suspended after six months for two years at Level
III probation. On the weapon charge, the Superior Court
sentenced Kilson to two years at Level V.
Kilson was charged with his first VOP in September 2016.
After a hearing, the Superior Court sentenced Kilson on the
assault charge, effective August 23, 2016, to six years at
Level V, suspended after 45 days for five years, ten months,
and 15 days at Level IV Home Confinement, suspended after six
months for one year at Level III probation.
January 4, 2017, Kilson was charged with his second VOP. The
violation report alleged that Kilson had tested positive for
alcohol consumption on December 15, 2016 and December 22,
2016. Kilson told his probation officer that his urinalysis
was positive because he had taken his host's prescription
cough medicine. The violation report asserted that Kilson had
violated his probation by consuming alcohol or prescription
medication that was not prescribed to him and that such
consumption was prohibited by the terms of his probation.
Superior Court held a VOP hearing on February 9, 2017. Kilson
was represented by counsel. The Superior Court found Kilson
in violation and sentenced him, effective December 30, 2016,
to six years at Level V incarceration, to be suspended after
six months for one year at Level III probation. Kilson
appeals his VOP sentence.
his opening brief on appeal, Kilson asserts that he was
wrongly charged with a VOP for consuming an over-the-counter
cough medicine, which his probation officer allegedly had
approved. Kilson also asserts that he suffers from
hypothyroidism, which he alleges can cause false positive
urine tests for alcohol consumption. Kilson also contends
that the Superior Court's six-month sentence was
excessive under the circumstances.
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. Kilson failed to request a transcript of
the VOP hearing for this appeal. Thus, to the extent Kilson
challenges the sufficiency of the evidence presented at the
VOP hearing, we are unable to review his claim without a
transcript of the hearing.
Kilson also claims that the Superior Court erred by
sentencing him to six months at Level V. But, this
Court's review of a sentence generally is limited to
determining whether the sentence is within statutory
limits. Once the State has proven by a
preponderance of evidence that a VOP has occurred, the
Superior Court is authorized to impose any period of
incarceration up to and including the balance of the Level V
time remaining to be served on the original
sentence. In this case, the Superior Court only
reimposed six months of the almost six years ...