Submitted: July 23, 2018
Below-Superior Court of the State of Delaware Cr. ID
STRINE, Chief Justice; VALIHURA and TRAYNOR, Justices.
STRINE, JR. CHIEF JUSTICE.
consideration of the appellant's opening brief, the
State's motion to affirm, and the record below, it
appears to the Court that:
appellant, Aaron Bradford, filed this appeal from the
Superior Court's April 3, 2018 order sentencing him for
his third 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 Bradford's opening brief that his
appeal is without merit. We agree and affirm.
record reflects that Bradford pled guilty on April 27, 2011
to two counts of Rape in the Fourth Degree. In exchange for
his plea, the State dismissed many additional charges. The
Superior Court sentenced Bradford to a total period of
fifteen years at Level V imprisonment, with credit for 254
days served, to be suspended upon Bradford's successful
completion of the Family Problems program for five years at
Level III probation. In November 2016 and November 2017, the
Superior Court found Bradford in violation of the terms of
his probation. Following his second VOP, the Superior Court
sentenced Bradford to ten years and three months at Level V,
to be suspended after serving thirteen days at the Level IV
VOP Center for two and a half years at Level III probation.
The Superior Court also added a condition that Bradford be
monitored by TASC and successfully complete a
TASC-recommended residential or outpatient drug treatment
March 2018, Bradford was charged with his third VOP. The
violation report alleged that Bradford refused to provide a
urine screen and admitted to using heroin twice. At his April
3, 2018 VOP hearing, Bradford admitted that he had used
heroin and had viewed adult pornography while on probation.
Bradford asserted that his difficulties with completing
probation stemmed in part from a no contact order, which
limited his access to his support network. Bradford's
mother spoke at the hearing, on behalf of the victim,
requesting that Bradford be permitted more contact with
Superior Court judge called counsel to a sidebar that was not
recorded. After the sidebar, the Superior Court expressed
concerns about community safety and then sentenced Bradford
to a total period of ten years at Level V, to be suspended
upon successful completion of the Key and Family Transitions
Programs for two years at Level IV Home Confinement, followed
by three years at Level III probation. The sentence order
required TASC to monitor Bradford while on home confinement
and reimposed all of the earlier conditions.
his two-page opening brief on appeal, Bradford's sole
argument is that the Superior Court sentenced him with a
closed mind. Bradford contends that the judge's comments
after the unrecorded sidebar reflect that the judge must have
considered inadmissible evidence of a polygraph test
administered by his probation officer. Bradford also asserts
that the judge had a closed mind because the judge failed to
address Bradford's evidence in mitigation and imposed a
sentence in excess of the sentencing guidelines.
Bradford does not dispute that he violated the terms of his
probation. His sole issue on appeal relates to his sentence.
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's VOP
sentence did not exceed the balance of Level V time remaining
on Bradford's sentence.
Moreover, we find no support for Bradford's contention
that the judge sentenced him with a closed mind. The judge
allowed Bradford's mother to speak on his behalf at the
hearing and considered Bradford's explanations for his
relapse, as well as his admissions to using heroin and
viewing adult pornography while on probation. It was
Bradford, not the judge, who commented about the results of a
polygraph examination. Although it was not ideal that the
sidebar conference was not recorded or the purpose for it not
clearly explained, it was not ex parte.
Bradford's counsel was present, and there is no basis to
infer that any improper information was discussed in that
conference, especially given that Bradford's counsel was
a participant. Rather, the record evidence provided more than
a sufficient basis for the trial judge's decision, and he
explained that decision in reference to that evidence. Under
the circumstances, we find no abuse of the judge's
discretion in sentencing Bradford to Level V imprisonment, to
be suspended upon his successful completion of the Key and
Family Transitions Programs.
THEREFORE, IT IS ORDERED that the judgment of the ...