Submitted: January 24, 2018
Below-Superior Court of the State of Delaware Cr. ID No.
STRINE, Chief Justice; VALIHURA and SEITZ, Justices.
Strine, Jr., Chief Justice
appellant's opening brief, the appellee's motion to
affirm, and the record below reflect that:
appellant, Thomas Whaley, filed this appeal from the Superior
Court's denial of his motion for correction of an illegal
sentence. The State of Delaware has filed a motion to affirm
the Superior Court's judgment on the ground that it is
clear on the face of Whaley's opening brief that his
appeal is without merit. We agree and affirm.
January 8, 2016, Whaley pled guilty to one count of
Disregarding an Officer's Signal and Attempted Criminal
Trespass in the First Degree. The Superior Court sentenced
Whaley as follows: (i) for Disregarding an Officer's
Signal, thirty days of Level V incarceration, with credit for
thirteen days previously served; and (ii) for Attempted
Criminal Trespass in the First Degree, one year of Level V
incarceration, suspended for one year of Level II probation.
Whaley did not appeal the Superior Court's judgment.
March 2016, Whaley was charged with his first VOP. On April
8, 2016, the Superior Court found that Whaley had violated
his probation. The Superior Court sentenced Whaley to one
year of Level V incarceration, with credit for fifteen days
previously served, suspended for one year of Level III
probation for Attempted Criminal Trespass in the First
Degree. In June 2016, a capias was issued for another VOP by
Whaley. The capias was returned in May 2017. On May 25, 2017,
the Superior Court found that Whaley had violated his
probation and sentenced him, effective May 25, 2017, to
eleven months of Level V incarceration, suspended for six
months at the Level IV VOP Center.
September 2017, Whaley was charged with a third VOP based on
his failure to comply with the rules and regulations of the
Sussex VOP Center. The charges arose from a fight with
another inmate. On October 6, 2017, the Superior Court found
that Whaley had violated his probation. The Superior Court
sentenced Whaley, effective October 6, 2017, to six months of
Level V incarceration.
October 30, 2017, Whaley filed a motion for correction of
illegal sentence. The Superior found the motion without merit
and denied it. This appeal followed.
his opening brief, Whaley argues, as he did below, that his
VOP sentence violated statutory limitations and sentencing
guidelines. We review the Superior Court's denial of a
motion for correction of sentence for abuse of discretion,
although questions of law are reviewed de
novo. A sentence is illegal if it exceeds the
statutory limits, violates double jeopardy, is ambiguous or
internally contradictory, omits a term required to be imposed
by statute, or is not authorized by the judgment of
conviction. Whaley's VOP sentence is not illegal.
Once Whaley committed a VOP, the Superior Court could impose
any period of incarceration up to and including the balance
of the Level V time remaining on his sentence. Whaley was
sentenced to eleven months of Level V incarceration,
suspended for six months of Level IV VOP Center for his
second VOP on May 25, 2017. At the time Whaley was sentenced
for his third VOP on October 6, 2017, he had served less than
five months of the eleven months imposed on May 25,
2017. The six-month Level V sentence imposed on
October 6, 2017 did not exceed the Level V time remaining on
Whaley's May 25, 2017 VOP sentence. As to Whaley's
claim that his VOP sentence exceeded the Sentencing
Accountability Commission's guidelines, "departure
from the guidelines is not a basis to overturn a sentence
within the statutory limits."
THEREFORE, IT IS ORDERED that the motion to affirm is granted
and the judgment ...