Boyce v. State

IN THE SUPREME COURT OF THE STATE OF DELAWARE
NICHOLAS BOYCE, §
§ No. 121, 2022
Defendant Below, §
Appellant, § Court Below—Superior Court
§ of the State of Delaware
v. §
§ Cr. ID No. 1911011368 (K)
STATE OF DELAWARE, §
§
Appellee. §
Submitted: July 26, 2022
Decided: September 19, 2022
Before SEITZ, Chief Justice; VAUGHN and TRAYNOR, 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, Nicholas Boyce, 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 Boyce’s opening brief that his appeal
is without merit. We agree and affirm.
(2) On December 6, 2021, Boyce pleaded guilty to third-degree burglary
and theft of $1,500 or more. The Superior Court sentenced Boyce as follows: for
the burglary offense, to three years of imprisonment, suspended for one year of Level
III probation; and for the theft offense, to two years of imprisonment, suspended for
one year of Level III probation.
(3) Boyce had another criminal case pending around the same time. It
appears that he was released from prison on January 13, 2022, following his
sentencing for criminal contempt of a Protection from Abuse order. On February 8,
2022, a probation officer filed a VOP report. The report alleged that Boyce had
violated the conditions of his probation by being arrested for a new criminal offense
on January 18, 2022; failing to report police contact that occurred on January 17 and
18, 2022; failing to report to probation after his release to probation on January 13,
2022; and failing to report a change of address.
(4) At a VOP hearing on March 18, 2022, Boyce’s counsel stated that
Boyce admitted that he did not report to probation as required. In later remarks to
the court, Boyce himself admitted to that charge and admitted that he did not report
the police contact. The Superior Court found Boyce to be in violation of probation
and imposed VOP sentences as follows: for the burglary offense, the court sentenced
Boyce to two years, eleven months, and 24 days of imprisonment, suspended for
nine months at Level V DOC Discretion, followed by six months at Level IV,
followed by one year of Level III probation with GPS monitoring; for the theft
offense, the court sentenced Boyce to two years of imprisonment, suspended for one
year of Level III probation.
2
(5) On appeal from his VOP sentence, Boyce argues that he was banned
from probation and therefore could not comply with the reporting requirement. He
also contends that the Superior Court should have “looked into” the matter. We find
no merit to this argument. Boyce appeared at the VOP hearing represented by
counsel. He admitted that he had violated probation, and the Superior Court found
him in violation based on his admissions. Boyce’s admissions to violating probation
constitute sufficient evidence to sustain the Superior Court’s finding of a VOP. 1
Moreover, Boyce has not explained on appeal how or why he was purportedly
“banned” from probation or why, if that were the case, that would mean that he
would be released from any supervision rather than required to serve his suspended
sentence.
(6) Boyce also contends that his VOP should be reversed because the
Superior Court judge said that she was going to “take [Boyce’s] case personal.” The
transcript reflects that after imposing the VOP sentence, the Superior Court judge
stated: “And just so you’re aware, Mr. Boyce, I’m paying attention, and so when
you make your way back to the community, I have decided that I’m going to make
it my personal business to ensure that you comply with this Court’s order while
you’re in the community.” Although phrased in a somewhat inartful way, when read
1
E.g., Cook v. State, 2019 WL 949372, at *1 (Del. Feb. 25, 2019); Lougheed v. State, 2016 WL
5899238, at *2 (Del. Oct. 10, 2016).
3
in the overall context of the transcript, it is clear that the court’s remark was intended
to reflect the court’s concerns about Boyce’s compliance with court orders and the
terms of his probation and to warn Boyce that he should strictly adhere to the court’s
orders when on probation or risk losing the opportunity to be in the community on
probation instead of serving his suspended sentence.2
(7) Finally, Boyce appears to challenge the Superior Court’s imposition of
a sentence that exceeded the sentence recommended by probation. 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 Once Boyce committed a
VOP, the Superior Court was authorized to impose any period of incarceration up to
and including the balance of Level V time remaining on his sentence.4 The record
does not reflect, and Boyce does not argue, that the VOP sentence exceeded statutory
limits or the Level V time that was previously suspended. We find no basis for
reversal.
2
See generally Collins v. State, 897 A.2d 159, 160 (Del. 2006) (“The grant of probation is an ‘act
of grace’ and a sentencing judge has broad discretionary power when deciding whether or not to
revoke probation.” (quoting Brown v. State, 249 A.2d 269, 271 (Del. 1968))).
3
Kurzmann v. State, 903 A.2d 702, 714 (Del. 2006).
4
11 Del. C. § 4334(c).
4
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/ Gary F. Traynor
Justice
5