JASON B. ERWIN, Defendant Below, Appellant,
STATE OF DELAWARE, Plaintiff Below, Appellee.
Submitted: October 17, 2019
Below-Superior Court of the State of Delaware Cr. ID No.
S1512009044 S1401000874 S1310009254
VALIHURA, VAUGHN, and TRAYNOR, Justices.
L. Valihura, 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, Jason B. Erwin, filed this appeal from his
sentencing for a violation of probation ("VOP").
The State has moved to affirm the judgment below on the
ground that it is manifest on the face of Erwin's opening
brief that his appeal is without merit. We agree and affirm.
2014, Erwin pleaded guilty to two third-offense DUIs arising
out of incidents that occurred on November 7, 2013 and
November 23, 2013. On May 7, 2014, the Superior Court
sentenced Erwin to a total of four years of Level V
incarceration, with credit for one day served, suspended
after 180 days for eighteen months at Level III probation.
Between 2015 and 2019, Erwin was found in violation of
probation multiple times. He was referred to the Veterans
Treatment Court and received VOP sentences that included
various substance-abuse-treatment programs. In 2016, he also
pleaded guilty to a fourth-offense DUI and was sentenced for
that offense. The end result of all of these proceedings was
that on June 26, 2019, the Superior Court entered a VOP
sentence order encompassing the two third-offense DUIs and
the fourth-offense DUI, in which the court sentenced Erwin to
a total of five years and seven months of Level V
incarceration, suspended after ten days for one year of Level
III (Oxford House Sober Living), with TASC monitoring and
other conditions, including zero tolerance for missed
appointments. Erwin did not appeal from that sentence.
July 19, 2019, Erwin's probation officer filed a
violation report alleging that Erwin had failed to report to
probation as required and had failed to engage in treatment
as required. On August 1, 2019, the Superior Court held a VOP
hearing and found Erwin in violation of probation. The
Superior Court terminated Erwin from the Veterans Treatment
Court and sentenced him to a total of five years and five
months of Level V incarceration, to be suspended after one
year for one year of Level IV work release, followed by one
year of Level III probation.
Erwin has appealed from his August 1, 2019 sentence. On
appeal, he argues that the Superior Court judge sentenced him
with a closed mind; his sentence is excessive and exceeded
the recommendation made by his probation officer; and the
attorney who represented him at the VOP hearing provided
ineffective assistance of counsel. We will not consider
Erwin's ineffective assistance of counsel claim for the
first time on direct appeal.
remaining claims lack merit. Erwin challenges only his
sentence, because he admits that he violated his
probation. "It is well-established that
appellate review of sentences is extremely
limited." Our review of a sentence generally ends
upon a determination that the sentence is within the
statutory limits prescribed by the legislature.If the sentence
falls within the statutory limits, "we consider only
whether it is based on factual predicates which are false,
impermissible, or lack minimal reliability, judicial
vindictiveness or bias, or a closed mind." "A judge
sentences with a closed mind when the sentence is based upon
a preconceived bias without consideration of the nature of
the offense or the character of the
defendant." When sentencing a defendant for a VOP, the
trial court may impose any period of incarceration up to and
including the balance of the Level V time remaining to be
served on the original sentence.
Erwin contends that the Superior Court judge sentenced him
with a closed mind because the judge failed to consider that
Erwin has already completed several treatment programs and
how difficult it was for Erwin to attend all of his
appointments. He also argues that the Superior Court
erroneously exceeded the sentencing recommendation made by
"TASC, Probation, the Prosecutor, and the PSI
Investigation." To the contrary, the record reflects
that, over a period of several years, the Superior Court gave
Erwin multiple opportunities for treatment and to remain out
of prison, yet Erwin repeatedly violated probation and also
incurred a fourth-offense DUI while on probation. Moreover,
Erwin faced a possible sentence of more than five years in
prison, but received only one year at Level V. There is
nothing in the record that supports the conclusion that the
Superior Court based Erwin's sentence on a
"preconceived bias, without consideration of the nature
of the offense or the character of the
THEREFORE, IT IS ORDERED that the Motion to Affirm is GRANTED
and the judgment ...