MICHAEL J. LAWLEY, Defendant Below, Appellant,
STATE OF DELAWARE, Plaintiff Below, Appellee.
Submitted: July 19, 2018
Below-Superior Court of the State of Delaware Cr. ID No.
STRINE, Chief Justice; VALIHURA and TRAYNOR, Justices.
Strine, Jr. Chief Justice
consideration of the appellant's opening brief, the
appellee's motion to affirm, and the record below, the
Court concludes that:
appellant, Michael J. Lawley, filed this appeal from the
Superior Court's May 25, 2018 order sentencing him for a
violation of probation ("VOP"). The State of
Delaware has moved to affirm the Superior Court's
judgment on the ground that it is manifest on the face of
Lawley's opening brief that the appeal is without merit.
We agree and affirm.
record reflects that, on March 20, 2017, Lawley pled guilty
to his fourth Driving Under the Influence offense. The
Superior Court sentenced Lawley to five years of Level V
imprisonment, suspended after six months for one year of
Level II probation. The sentence also required Lawley to
complete a drug and alcohol abstinence program and a drug and
alcohol treatment program.
October 19, 2017, an administrative warrant was filed for
Lawley's VOP. After a VOP hearing on November 3, 2017,
the Superior Court found that Lawley had violated his
probation and sentenced him to four years and six months of
Level V incarceration, suspended after thirty days for one
year of Level III probation. The sentence included a zero
tolerance condition for drugs and alcohol.
December 1, 2017, another administrative warrant was filed
for Lawley's VOP. After a VOP hearing on December 11,
2017, the Superior Court found that Lawley had violated his
probation and sentenced him to four years and five months of
Level V incarceration, suspended for one year of Level IV
Crest, to be suspended upon successful completion for one
year of Level III Crest Aftercare. Upon Lawley's motion
for sentence modification, the Superior Court modified the
sentence to four years and five months of Level V
incarceration, suspended for 90 days of Level IV Crest, to be
suspended upon successful completion for 90 days of Level IV
Work Release, to be suspended upon successful completion for
one year of Level III Crest Aftercare. Level III Crest
Aftercare was subsequently modified to Level III probation.
May 9, 2018, another administrative warrant was filed for
Lawley's VOP. The VOP report alleged that Lawley had
violated the terms of his probation by failing to provide a
urine screen as directed and testing positive for various
illegal drugs after admitting himself into Dover Behavioral
Health. After a VOP hearing on May 25, 2018, the Superior
Court found that Lawley had violated his probation. The
Superior Court sentenced Lawley to four years and five months
of Level V incarceration. This appeal followed.
his opening brief, Lawley argues that: (i) his constitutional
right to privacy and his HIPAA rights were violated by Dover
Behavioral Health providing his drug test results to
Probation and Parole without his consent; (ii) a court cell
block officer who had a verbal disagreement with Lawley
before the VOP hearing should not have been allowed to
recommend a greater Level V sentence for Lawley; and (iii)
Probation and Parole should have conducted their own urine
screen to prove there was no tampering with Dover Behavioral
Health's urine screen. As the appealing party, Lawley has
the burden of producing "such portions of
the…transcript as are necessary to give this Court a
fair and accurate account of the context in which the claim
of error occurred" and "all evidence relevant to
the challenged finding or conclusion." Lawley failed to
designate the transcript of the May 25, 2018 VOP hearing. We
cannot review Lawley's claims in the absence of a
transcript of VOP hearing.
Lawley also argues that his VOP sentence is illegal because
there were only three years and seven months left on his
original sentence. This claim appears to be based on
Lawley's mistaken belief that his original Level V
sentence was for four years and five months (he was
originally sentenced to five years of Level V incarceration,
suspended after six months for probation) and that he was
entitled to Level V credit for his time at Level IV Crest and
Work Release. Once Lawley 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
Lawley' sentence.The Level V sentence imposed by the
Superior Court after Lawley's VOP did not exceed the
Level V time previously suspended and was within statutory
THEREFORE, IT IS ORDERED that the motion to affirm is GRANTED
and the judgment ...