Shoates v. State ( 2018 )

IN THE SUPREME COURT OF THE STATE OF DELAWARE
ARTHUR L. SHOATES, §
§
Defendant Below, § No. 148, 2018
Appellant, §
§ Court Below—Superior Court
v. § of the State of Delaware
§
STATE OF DELAWARE, § Cr. ID Nos. 1310010692,
§ 11402002877 (K)
Plaintiff Below, §
Appellee. §
Submitted: July 19, 2018
Decided: August 14, 2018
Before STRINE, Chief Justice; VALIHURA and TRAYNOR, Justices.
ORDER
After consideration of the appellant’s opening brief, the appellee’s motion to
affirm, and the record below, the Court concludes that:
(1) The appellant, Arthur L. Shoates, filed this appeal from the Superior
Court’s February 26, 2018 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 Shoates’ opening brief that the appeal
is without merit. We agree and affirm.
(2) The record reflects that, on June 19, 2017, Shoates resolved two
different cases by pleading guilty to his third Driving Under the Influence offense
and Carrying a Concealed Deadly Instrument (“CCDI”). The Superior Court
sentenced Shoates as follows: (i) for Driving Under the Influence, effective June 1,
2017, two years of Level V incarceration, suspended after three months and
completion of the Level V Reflections Program, followed by one year of Level II
probation; and (ii) for CCDI, one year of Level V incarceration, suspended for one
year of Level II probation. The sentence included a zero tolerance for alcohol
condition and a requirement that Shoates maintain a period of sobriety not less than
90 consecutive days as measured by a transdermal alcohol device or periodic breath
or urine analysis. On August 24, 2017, the Superior Court modified the Driving
Under the Influence sentence to one year and nine months of Level V incarceration,
suspended immediately for three months Level IV Home Confinement and
successful completion of an Intensive Outpatient Program, followed by one year of
Level III probation. The zero tolerance for alcohol condition and 90-day sobriety
period remained in effect.
(3) On February 7, 2018, an administrative warrant was filed for Shoates’
VOP. The VOP report alleged that Shoates violated the terms of his probation and
sentence by testing positive for alcohol and marijuana in January. After a VOP
hearing on February 26, 2018, the Superior Court found that Shoates had violated
his probation. The Superior Court sentenced Shoates as follows: (i) for Driving
Under the Influence, effective February 6, 3018, one year and nine months of Level
V incarceration, suspended immediately for one year of Level III Intensive
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Outpatient Treatment Program; and (ii) for CCDI, one year of Level V incarceration,
suspended for one year of Level III Intensive Outpatient Treatment Program. This
appeal followed.
(4) In his opening brief, Shoates objects to his VOP sentence on the
grounds of over-sentencing. He also contends that a probation officer’s statement at
the VOP hearing that he used the transdermal alcohol device as a crutch to stay clean
was unfair because he only used alcohol and marijuana once on New Year’s Eve
under the mistaken belief that he would not be violated for one positive urine sample.
Shoates does not dispute that he violated his probation by consuming alcohol and
marijuana.
(5) This Court’s appellate review of a sentence is extremely limited and
generally ends upon a determination that the sentence is within statutory limits.1
Once Shoates 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
Shoates’ sentence.2 The Level V sentence imposed and immediately suspended by
the Superior Court after Shoates’ VOP did not exceed the Level V time previously
suspended and was within statutory limits. As to the probation officer’s statement
at the VOP hearing, that statement was not unreasonable given the nature of Shoates’
1
Kurzmann v. State, 903 A.2d 702, 714 (Del. 2006).
2
11 Del. C. § 4334(c); Pavulak v. State, 880 A.2d 1044, 1046 (Del. 2005).
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crimes (a third DUI offense) and his consumption of alcohol shortly after he stopped
wearing a transdermal alcohol device, while he was still subject to a zero tolerance
for alcohol condition.
NOW, THEREFORE, IT IS ORDERED that the motion to affirm is
GRANTED and the judgment of the Superior Court is AFFIRMED.
BY THE COURT:
/s/ Leo E. Strine, Jr.
Chief Justice
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