MATTHEWS v. STATE, 23 A.3d 865 (Del. 2011)

No. 121, 2011.Supreme Court of Delaware.Submitted: May 23, 2011.
Decided: July 11, 2011.

Court Below — Superior Court of the State of Delaware in and for Sussex County, Cr. ID No. 0710011075.

Before HOLLAND, BERGER andJACOBS, Justices.

ORDER
CAROLYN BERGER, Justice.

This 11th day of July 2011, upon consideration of the appellant’s opening brief and the appellee’s motion to affirm pursuant to Supreme Court Rule 25(a), it appears to the Court that:

(1) The defendant-appellant, Barry D. Matthews, filed an appeal from the Superior Court’s February 18, 2011 violation of probation (“VOP”) sentencing order. The plaintiff-appellee, the State of Delaware, has moved to affirm the Superior Court’s judgment on the ground that it is manifest on the face of the opening brief that the appeal is without merit.[1] We agree and affirm.

(2) The record before us reflects that, in March 2008, Matthews pleaded guilty to 2 counts of Burglary in the Third Degree and one count of Conspiracy in the Second Degree. He was sentenced to a total of 7 years of Level V incarceration, with credit for 162 days, to be suspended for 1 year of Level III probation. Matthews also was ordered to pay $2,470 in restitution.

(3) In October 2008, Matthews was found to have committed a VOP. He was sentenced to a total of 6 years, 6 months at Level V, to be held at the VOP Center until space was available for him to serve 6 months of Level IV Work Release, to be followed by 1 year of Level II probation and 1 year of Level I probation for the purpose of restitution. The Superior Court explicitly noted in its sentencing order that the Level V sentences reflected all Level V time Matthews had previously served.

(4) In February 2010, Matthews was found to have committed a second VOP. He was sentenced on the conspiracy conviction to 4 years at Level V, to be suspended for 1 year at Level II probation, to be followed by 1 year of Level I probation for the purpose of restitution. He was discharged as unimproved on the burglary conviction. Again, the Superior Court explicitly gave Matthews credit for Level V time previously served in its Level V sentence.

(5) In February 2011, Matthews was found to have committed a third VOP. He was sentenced to 3 years at Level V, with credit for 11 days served at Level V, to be suspended after 1 year for 1 year of Level IV Work Release, to be followed by 1 year at Level I for the purpose of restitution.

(6) In this appeal from the Superior Court’s latest VOP sentencing order, Matthews claims that his sentence should be reduced because a) the sentence is excessive; b) the Superior Court failed to take into account his feelings of remorse; c) the Superior Court failed to take into account the fact that he has a job waiting for him after his incarceration; and d) his probation officer did not inform the Superior Court about his progress.

(7) Once a defendant is found to have committed a VOP, the Superior Court has the authority to impose a Level V sentence in an amount equal to the balance of the suspended sentence then in effect.[2] Matthews does not challenge his VOP sentence on that ground, but, rather, argues that the Superior Court failed to take certain mitigating factors into consideration.

(8) The factors cited by Matthews do not form a proper basis for reducing his VOP sentence.[3] Moreover, it appears that Matthews was arrested while on probation on February 6, 2011 and charged with several crimes including Burglary in the Second Degree, charges that remain pending. We, therefore, find no abuse of discretion on the part of the Superior Court in sentencing Matthews as it did.

(9) It is manifest on the face of the opening brief that this appeal is without merit because the issues presented on appeal are controlled by settled Delaware law and, to the extent that judicial discretion is implicated, there was no abuse of discretion.

NOW, THEREFORE, IT IS ORDERED that the State’s motion to affirm is GRANTED. The judgment of the Superior Court is AFFIRMED.