KEVIN H. BOONE, Defendant Below-Appellant,
STATE OF DELAWARE, Plaintiff Below-Appellee.
Submitted: August 16, 2018
Below-Superior Court of the State of Delaware Cr. ID
STRINE, Chief Justice; VALIHURA and VAUGHN, Justices.
L. Valihura, Justice.
consideration of the appellant's opening brief, the
State's motion to affirm, and the record on appeal, it
appears to the Court that:
appellant, Kevin H. Boone, filed this appeal from the
Superior Court's order dated May 30, 2018, denying
Boone's motion for correction of an illegal sentence. The
State of Delaware has filed a motion to affirm the judgment
below on the ground that it is manifest on the face of
Boone's opening brief that the appeal is without merit.
We agree and affirm.
Boone pled guilty in December 2013 to one count of dealing in
child pornography and three counts of possessing child
pornography. The Superior Court sentenced Boone to a total
period of twenty-four years at Level V incarceration, to be
suspended after serving three years in prison for three years
at decreasing levels of probation supervision. Boone did not
appeal. In December 2017, Boone was found in violation of his
probation and sentenced to twenty-one years at Level V
incarceration, to be suspended upon Boone's successful
completion of the Transitions Program for two and a half
years at decreasing levels of supervision. Boone did not
appeal that judgment or sentence. In February 2018, Boone
filed a motion for reduction of sentence, which the Superior
Court denied. Boone did not appeal. In May 2018, Boone filed
a motion for correction sentence, claiming that his VOP
sentence was illegal. The Superior Court denied his motion.
This appeal followed.
Boone argues in his opening brief that his VOP sentence is
illegal because it violated the SENTAC guidelines and the
judge exhibited a closed mind. Boone also argues that his
rights were violated at his VOP hearing because the State
argued that Boone had engaged in conduct for which he was
find no merit to Boone's appeal. A motion for correction
of sentence is very narrow in scope. It is not a means to
challenge the legality of a conviction or to raise
allegations of error occurring in the proceedings before the
imposition of sentence. Thus, we reject Boone's attempt to
attack the validity of his VOP adjudication by arguing that
the State presented irrelevant and prejudicial evidence at
his VOP hearing.
Superior Court Criminal Rule 35(a) permits relief when
"the sentence imposed exceeds the statutorily-authorized
limits, [or] violates the Double Jeopardy
Clause." A sentence also is illegal if it "is
ambiguous with respect to the time and manner in which it is
to be served, is internally contradictory, omits a term
required to be imposed by statute, is uncertain as to the
substance of the sentence, or is a sentence which the
judgment of conviction did not authorize."
sentencing a defendant for a VOP, the trial 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 reimposed the Level V time remaining from Boone's
original sentence, but ordered it to be suspended upon
Boone's successful completion of the Transitions Program
for decreasing levels of supervision. Under the
circumstances, the sentence was authorized by law, was
neither arbitrary nor excessive, and does not reflect any
evidence of a closed mind by the sentencing judge. To the
extent Boone's sentence exceeded the SENTAC sentencing
guidelines, that fact alone, without more, does not establish
judicial bias because the guidelines are not
binding. Thus, we find no merit to Boone's
THEREFORE, IT IS ORDERED that the judgment of the Superior
Court is AFFIRMED.