JOSEPH A. COOK, Defendant Below, Appellant,
STATE OF DELAWARE, Plaintiff Below, Appellee.
Submitted: January 17, 2019
Below-Superior Court of the State of Delaware Cr. ID No.
STRINE, Chief Justice; VALIHURA and VAUGHN, Justices.
STRINE, JR. CHIEF 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, Joseph Cook, appeals from the Superior Court's
order sentencing him for a violation of probation
("VOP"). The State has filed a motion to affirm the
Superior Court's judgment on the ground that it is
manifest on the face of Cook's opening brief that the
appeal is without merit. We agree and affirm.
record reflects that Cook pleaded guilty on June 12, 2018 to
Disregarding a Police Officer's signal in violation of 21
Del. C. § 4103, which is a Class G felony. In
exchange for this plea, the State dismissed many additional
charges. The Superior Court sentenced him to two years'
incarceration suspended after 60 days for Level III
August 3, 2018, Cook was arrested on charges of misdemeanor
criminal mischief for damage that he caused to his residence
in connection with a domestic dispute. At a violation of
probation hearing before the Superior Court on August 30,
2018, Cook, through his counsel, admitted that the arrest
constituted a violation of probation and suggested that the
Court impose a sentence of two years of Level V
incarceration, suspended for one year of Level III probation
with Treatment Access Center ("TASC") and
Transdermal Alcohol Detector ("TAD") monitoring.
The Superior Court found that Cook violated his probation and
resentenced him to twenty-one months of Level V
incarceration, suspended for one year at Level III probation.
The sentence included the conditions that Cook be monitored
by TASC and successfully complete a residential or outpatient
drug and alcohol treatment program as deemed appropriate by
TASC, and that he be subject to TAD monitoring or periodic
breath or urine analysis. Cook was to be held at Level V
until Level III TAD monitoring was available.
Cook raises two issues on appeal. He contends that the
probation officer who attended the VOP hearing was not his
supervising officer and that the appearing officer
incorrectly told the judge that Cook had been involved in
multiple incidents involving alcohol. He also argues that the
Superior Court erroneously sentenced Cook under the
sentencing guidelines established in 21 Del. C.
§ 4177(d)(9) for repeat offenders of the prohibition on
driving while under the influence of alcohol or drugs. He
contends that the conditions of his sentence requiring TASC
and TAD monitoring should be removed.
After careful consideration, we find no merit to Cook's
appeal. Cook appeared at the VOP hearing represented by
counsel. He admitted that he had violated probation. The
Superior Court found him in violation based on that
admission. Cook's admission to violating probation
constitutes sufficient evidence to sustain the Superior
Court's finding of a VOP. There is nothing in the record to
substantiate Cook's claim that the probation officer
offered false testimony. Indeed, the record reflects that the
report prepared by Cook's supervising officer identified
serious concerns about Cook's alcohol use and recommended
TASC treatment and monitoring and TAD monitoring. And at the
VOP hearing when the Superior Court asked Cook whether he
wanted to say anything before he was sentenced, Cook said
that he wanted to "live a sober
appeal, our review of a sentence generally ends upon a
determination that the sentence is within the statutory
limits prescribed by the legislature. In 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 accounted
for the time Cook had already served and sentenced Cook to
twenty-one months of Level V incarceration instead of the two
years of incarceration to which he was sentenced for his
original conviction. The Court suspended the remainder of
that sentence for probation with TASC and TAD monitoring.
This sentence did not exceed the balance of the Level V time
remaining to be served on Cook's sentence. Moreover, the
TASC and TAD conditions were consistent with the sentence
that Cook's counsel suggested at the VOP hearing would be
Finally, the Superior Court entered a corrected sentence
order on November 8, 2018, removing the citation to 21
Del. C. § 4177(d)(9) and clarifying that the
TAD monitoring was not ordered under that statute. Thus, we
conclude that any error arising from the Court's
reference to 21 Del. C. § 4177(d)(9) has been
corrected. The Superior Court acted within its sentencing
discretion when imposing the TASC and TAD
THEREFORE, IT IS ORDERED that the motion to affirm is
GRANTED, and the judgment ...