Submitted: April 17, 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
appellee's motion to affirm, and the record below, it
appears to the Court that:
appellant, Francisco Sandoval, filed this appeal from the
Superior Court's January 18, 2019 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
Sandoval's opening brief that the appeal is without
merit. We agree and affirm.
record reflects that, in January 2009, Sandoval entered a
Robinson plea to Rape in the Third Degree and
Endangering a Child. The Superior Court sentenced Sandoval as
follows: (i) for Rape in the Third Degree, twenty years of
Level V incarceration, suspended after two years for five
years of Level III probation; and (ii) for Endangering a
Child, two years of Level V incarceration, suspended for one
year of Level III probation. Sandoval did not appeal.
February 7, 2014, the Superior Court found that Sandoval had
violated his probation. The Superior Court sentenced Sandoval
as follows: (i) for Rape in the Third Degree, eighteen years
of Level V incarceration, suspended for five years of Level
III probation; and (ii) for Endangering a Child, two years of
Level V incarceration, suspended for one year of Level III
probation. Sandoval did not appeal.
October 5, 2018, the Superior Court found that Sandoval had
violated his probation again. For Rape in the Third Degree,
Sandoval was sentenced to seventeen years of Level V
incarceration, suspended for one year of Level III probation.
For Endangering the Welfare of a Child, Sandoval was
discharged as unimproved. Sandoval did not appeal.
January 8, 2019, an administrative warrant was filed for
Sandoval's VOP. The warrant alleged that Sandoval had
tested positive for cocaine several times, admitted to using
cocaine and heroin, failed to report for two weekly visits,
was discharged from one substance abuse program for missing
multiple appointments, and failed to show that he had
enrolled in another program. On January 18, 2019, the
Superior Court found that Sandoval had violated his probation
and sentenced him to sixteen years and six months of Level V
incarceration, suspended for one year of Level IV residential
substance abuse treatment, followed by six months of Level
III probation. This appeal followed. As the appealing party,
Sandoval was required to-but did not-request a transcript of
the January 18, 2019 VOP hearing for this
his opening brief on appeal, Sandoval argues that: (i) he was
not on probation at the time of the October 2018 VOP hearing;
(ii) he and his probation officer had a deal that he could
violate his probation without being reported; (iii) his
counsel was ineffective for failing to inform the Superior
Court about his deal with his probation officer, failing to
inform the Superior Court that he preferred Level V time to a
substance abuse program, and failing to file an appeal; and
(iv) his sentence and the conditions of his confinement
constitute cruel and unusual punishment. We will not consider
Sandoval's ineffective assistance of counsel claims for
the first time on direct appeal.
remaining claims lack merit. Sandoval's claims concerning
his October 18, 2018 VOP are outside the scope of this
appeal. If Sandoval wished to challenge that VOP, he should
have filed an appeal from that VOP. As to Sandoval's
claimed deal with his probation officer, he offers nothing to
support the existence of such a deal and does not dispute
that he violated his probation. Under these circumstances,
the Superior Court did not err in finding he violated his
Finally, this Court's appellate review of a sentence is
extremely limited and generally ends upon a determination
that the sentence is within statutory limits.Once Sandoval
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 Sandoval's sentence. The non-Level V
sentence imposed by the Superior Court was within statutory
limits and did not constitute cruel and unusual punishment.
We also conclude that the conditions of Sandoval's
confinement, which include delayed access to medicated
shampoo and lack of access to a commissary to buy toiletries,
are not cruel and unusual.
THEREFORE, IT IS ORDERED that the motion to affirm is GRANTED
and the judgment ...