Bouyer-Bello v. State of Delaware ( 2021 )

IN THE SUPREME COURT OF THE STATE OF DELAWARE
YOLANDA BOUYER-BELLO, §
§ No. 44, 2021
Defendant Below, §
Appellant, § Court Below—Superior Court
§ of the State of Delaware
v. §
§ Cr. ID No. K1908004533
STATE OF DELAWARE, §
§
Plaintiff Below, §
Appellee. §
Submitted: April 21, 2021
Decided: April 26, 2021
Before SEITZ, Chief Justice; VALIHURA and VAUGHN, Justices.
ORDER
Upon consideration of the appellant’s opening brief, the appellee’s motion to
affirm, and the record below, it appears to the Court that:
(1) The appellant, Yolanda Bouyer-Bello, filed this appeal from her
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 Bouyer-Bello’s
opening brief that the appeal is without merit. We agree and affirm.
(2) On January 2, 2020, Bouyer-Bello pleaded guilty to misdemeanor theft
and second-degree criminal trespass. The Superior Court sentenced her as follows:
for criminal trespass, to six months of imprisonment, suspended for one year of
Level II probation; and for theft, to one year of imprisonment, suspended for one
year of Level II probation. On January 30, 2020, the Superior Court modified the
sentence order to include substance abuse evaluation and monitoring by the
Treatment Access Center (“TASC”). Bouyer-Bello did not appeal from either of the
January 2020 sentencing orders.
(3) On August 14, 2020, the Superior Court found Bouyer-Bello in
violation of probation (“VOP”). The court sentenced her as follows: for criminal
trespass, to six months of imprisonment, suspended for one year of Level III
probation; and for theft, to one year of imprisonment, with credit for three days
served, suspended for one year at Level IV DOC Discretion, followed by one year
of a Level III intensive outpatient treatment program. She did not appeal from the
August 14, 2020 sentencing order.
(4) On January 7, 2021, a probation officer filed a VOP report alleging that
Bouyer-Bello had violated the terms of her supervision by, among other things,
cutting off her GPS ankle monitor. At a video VOP hearing on January 22, 2021,
Bouyer-Bello’s counsel stated that Bouyer-Bello admitted that she cut off her GPS
ankle monitor.1 Moreover, when Bouyer-Bello addressed the court, she herself
admitted that she had cut off the ankle monitor.2
1
Motion to Affirm, Exhibit F, at 2:16-17.
2
Id. at 12:17.
2
(5) The Superior Court found Bouyer-Bello in violation and sentenced her
as follows: for criminal trespass, to six months of imprisonment, suspended for one
year of Level III probation; for theft, to eleven months and twenty-seven days of
imprisonment, suspended after eight months for one year of Level III probation.
Bouyer-Bello has appealed.
(6) On appeal, Bouyer-Bello does not challenge the Superior Court’s
finding that she violated probation. Instead, she challenges only the sentence
imposed. “It is well-established that appellate review of sentences is extremely
limited.”3 Our review of a sentence generally ends upon a determination that the
sentence is within the statutory limits prescribed by the legislature.4 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.”5 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.6
(7) In this case, the Superior Court imposed a VOP sentence that was
within the time remaining on Bouyer-Bello’s original sentence. Thus, we find no
3
Kurzmann v. State, 903 A.2d 702, 714 (Del. 2006).
4
Mayes v. State, 604 A.2d 839, 842 (Del. 1992).
5
Kurzmann, 903 A.2d at 714.
6
11 Del. C. § 4334(c).
3
reversible error with respect to the VOP sentence for the theft offense. But the State
has acknowledged an error in the sentence that the Superior Court originally imposed
for second-degree criminal trespass, and that error has carried through to the VOP
sentence that is at issue in this appeal.
(8) Second-degree criminal trespass is an unclassified misdemeanor.7 Title
11, Section 4206(c) of the Delaware Code provides that the “sentence for an
unclassified misdemeanor shall be a definite sentence fixed by the court in
accordance with the sentence specified in the law defining the offense.”8 If the
statute defining the offense does not specify a sentence, then “the sentence may
include up to 30 days incarceration at Level V and such fine up to $575, restitution
or other conditions as the court deems appropriate.”9 The statute defining the offense
of second-degree criminal trespass does not specify a sentence.10 Under Section
4206(c), the maximum allowable term of incarceration for that offense was therefore
thirty days, and the six-month sentence that the Superior Court imposed exceeded
the statutory limit.
NOW, THEREFORE, IT IS ORDERED that the judgment of the Superior
Court, insofar as it pertains to the finding of the violation of probation, is
7
11 Del. C. § 822.
8
Id. § 4206(c).
9
Id.
10
Id. § 822.
4
AFFIRMED. The matter is REMANDED to the Superior Court for the purpose of
correcting the defendant’s sentence. The motion to expedite is moot. Jurisdiction is
not retained.
BY THE COURT:
/s/ Karen L. Valihura
Justice
5