Submitted: April 16, 2019
Below-Superior Court of the State of Delaware Cr. ID No.
STRINE, Chief Justice; SEITZ and TRAYNOR, Justices.
F. Traynor 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, Katie Beck, appeals from the Superior Court's
order sentencing her for her third 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 Beck's opening brief that the
appeal is without merit. We affirm the Superior Court's
record reflects that on June 13, 2017 Beck pleaded guilty to
Aggravated Menacing, two counts of Offensive Touching, and
Criminal Mischief. The Superior Court sentenced her to a
total period of five years and ninety days of Level V
incarceration, with credit for fourteen days previously
served, to be suspended for probation.
Superior Court found Beck in violation of probation on
September 14, 2017. For that first VOP, the court resentenced
Beck to four years and nine months of Level V incarceration
for the Aggravated Menacing charge, suspended after four
months at Level V for one year of probation. For the
Offensive Touching and Criminal Mischief charges, the court
discharged Beck as unimproved.
Superior Court found Beck in violation of probation for a
second time on April 20, 2018. The court resentenced Beck to
four years of Level V incarceration, with the balance of the
sentence suspended for one year at supervision Level IV
residential substance abuse treatment, suspended upon
successful completion for six months of Level III aftercare.
March 29, 2019, after finding her in violation of probation
for a third time, the Superior Court resentenced Beck,
effective March 29, 2019, to three years of Level V
incarceration, to be discharged as unimproved after serving
one year in prison. The sentencing order provided that
"[t]he level 5 time imposed in today's sentence
takes into consideration all time previously served."
Beck has appealed to this Court. She argues that the
effective date of the VOP sentence deprives her of credit for
fourteen days that she was incarcerated while awaiting the
This Court's appellate review of a sentence is extremely
limited and generally ends upon a determination that the
sentence is within the statutory limits prescribed by the
legislature. Title 11, Section 3901(b) of the Delaware
Code provides that "[a]ll sentences for criminal
offenses of persons who at the time sentence is imposed are
held in custody in default of bail, or otherwise, shall begin
to run and be computed from the date of incarceration for the
offense for which said sentence shall be imposed . . .
." A sentencing court may satisfy Section 3901 either by
"backdating" the effective date of the sentence to
the date of incarceration or by crediting the defendant with
the time served. Here, the Superior Court credited Beck
with the time served by providing in the body of the
sentencing order that the sentence took into account all time
previously served and by reducing the Level V time remaining
on her sentence.
Once the State established the VOP, the Superior Court was
authorized to impose any period of incarceration up to and
including the balance of the Level V time remaining to be
served on Beck's sentence. On April 20, 2018, after finding
her in violation of probation for the second time, the court
had resentenced Beck to four years of Level V incarceration,
suspended for various levels of supervision. Beck does not
allege that she was incarcerated for any period of time after
April 20, 2018, other than the fourteen days beginning March
15, 2019, when she was awaiting her third VOP hearing. Thus,
it appears that at the time of sentencing for her third VOP,
three years and 351 days of Level V time were remaining on
her sentence. She received a sentence of three years of Level
V incarceration, of which she must serve only one year. The
sentence imposed by the Superior Court therefore did not
exceed the Level V time remaining on her
THEREFORE, IT IS ORDERED that the motion to affirm is
GRANTED, and the judgment ...