Horsey v. State ( 2022 )

EFiled: May 04 2022 08:26AM EDT
Filing ID 67582707
Case Number 345,2021
IN THE SUPREME COURT OF THE STATE OF DELAWARE
RAYQUIAN HORSEY, §
§ No. 345, 2021
Defendant Below, §
Appellant, § Court Below—Superior Court
§ of the State of Delaware
v. §
§ Cr. ID No. 1910015287 (K)
STATE OF DELAWARE, §
§
Appellee. §
Submitted: March 7, 20221
Decided: May 4, 2022
Before SEITZ, Chief Justice; TRAYNOR and MONTGOMERY-REEVES,
Justices.
ORDER
Upon consideration of the opening brief, motion to affirm, and record on
appeal, it appears to the Court that:
(1) On March 31, 2020, Rayquian Horsey pled guilty to possession of a
firearm by a person prohibited (“PFBPP”) in exchange for the dismissal of other
drug and weapon charges. On May 24, 2021, the Superior Court sentenced Horsey
to eight years of Level V incarceration, suspended for one year of Level III
probation. As part of his sentence, Horsey was to be evaluated for substance abuse
and to follow all recommended treatment.
1
The motion to affirm was refiled on April 19, 2022 to include the exhibits referenced in
the original motion.
(2) On August 27, 2021, the Department of Correction filed a VOP report.
The VOP report alleged, among other things, that Horsey had been charged with
new crimes, failed to report to his probation officer since May, and failed to complete
a substance abuse evaluation. After a hearing on October 22, 2021, the Superior
Court found that Horsey had violated his probation. The Superior Court sentenced
Horsey, effective October 1, 2021, to seven years and six months of Level V
incarceration, suspended after one year for decreasing levels of supervision. This
appeal followed.
(3) In his opening brief, Horsey does not dispute that he violated his
probation, but instead contends that the VOP sentence was “extreme” for a first,
technical VOP.2 This Court’s appellate review of a sentence is extremely limited
and generally ends upon a determination that the sentence is within statutory limits.3
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.”4
2
Opening Br. 1. In the combined notice of appeal and opening brief he filed on October
28, 2021, Horsey also argued that his VOP counsel was ineffective for advising Horsey
that he needed to file his own notice of appeal if he wished to appeal the VOP sentence.
He is mistaken. Supreme Court Rule 26(l) provides that defense counsel satisfies his
continuing obligation in VOP proceedings if he advises his client, in writing, of any right
to appeal, whether defense counsel will continue representation on appeal, and that if the
client wishes to appeal, he must file a notice of appeal within thirty days. The record
reflects Horsey’s VOP counsel satisfied Rule 26(l).
3
Kurzmann v. State, 903 A.2d 702, 714 (Del. 2006).
4
Id.
2
(4) Once Horsey 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 Horsey’s sentence.5 Horsey does not argue that the VOP sentence exceeded
statutory limits or the Level V time previously suspended. Nor has Horsey identified
any basis to suggest that the VOP sentence was based on factual predicates that are
false, impermissible, or lack minimal reliability, judicial vindictiveness or bias, or a
closed mind. It is manifest on the face of Horsey’s opening brief that his appeal is
without merit.
NOW, THEREFORE, IT IS ORDERED that the State’s motion to affirm is
GRANTED and the judgment of the Superior Court is AFFIRMED.
BY THE COURT:
/s/ Tamika R. Montgomery-Reeves
Justice
5
11 Del. C. § 4334(c); Pavulak v. State, 880 A.2d 1044, 1046 (Del. 2005).
3