Doughty v. State

IN THE SUPREME COURT OF THE STATE OF DELAWARE
LEPRE DOUGHTY, §
§
Defendant BeloW, § No. 178, 2016
Appellant, §
§ Court BeloW_Superior Court
V. § of the State of DelaWare
§
STATE OF DELAWARE, § Cr. ID Nos. 1008005495
§
Plaintiff Below, §
Appellee. §
Submitted: July 22, 2016
Decided: September 14, 2016
Before STR]NE, Chief Justice; HOLLAND, and VALIHURA, Justices.
0 R D E R
This 14th day of September 2016, upon consideration of the appellant’s
opening brief, the appellee’s motion to afflrm, and the record below, it appears to
the Court that:
(1) The appellant, Lepre Doughty, f11ed this appeal from the Superior
Court’s March 17, 2016 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 Doughty’s opening brief that the appeal is
Without merit. We agree and affirm.
(2) The record reflects that, on July 12, 2011, Doughty pled guilty to
Robbery in the First Degree, Robbery in the Second Degree, Conspiracy, and
Burglary in the Third Degree, Doughty Was sentenced as follows: (i) for Robbery
in the First Degree, twenty-five years of Level V incarceration, With credit for 339
days previously served, suspended after four years for two years of Level III
probation; (ii) for Robbery in the Second Degree, five years of Level V incarceration,
suspended for two years of Level III probation; (iii) for Conspiracy in the Second
Degree, two years of Level V incarceration, suspended for one year of Level III
probation; and (iv) for Burglary in the Third Degree, two years of Level V
incarceration suspended for one year of`` Level III probation. Doughty did not appeal
the Superior Court’s judgment.
(3) On August 8, 2014, the Superior Court found that Doughty committed
his first VOP. Doughty Was sentenced as follows: (i) for Robbery in the First
Degree, twenty years and nine months of Level V incarceration, suspended after nine
months for one year of Level III probation; (ii) for Robbery in the Second Degree,
five years of`` Level V incarceration, suspended for one year of Level III probation;
(iii) for Conspiracy in the Second Degree, two years of Level V incarceration,
suspended for one year of Level III probation; and (iv) for Burglary in the Third
Degree, two years of Level V incarceration suspended for one year of Level III
probation. Doughty did not appeal the Superior Court’s judgment.
(4) On September 24, 2015, the Superior Court found that Doughty
committed his second VOP. Doughty Was sentenced as follows: (i) for Robbery in
the First Degree, twenty years of`` Level V incarceration, suspended for eighteen
months of Level III probation with GPS monitoring; (ii) for Robbery in the Second
Degree, five years of Level V incarceration, suspended for eighteen months of Level
III probation; (iii) f``or Conspiracy in the Second Degree, eighteen months of of Level
V incarceration, suspended for eighteen months of Level III probation with GPS
monitoring; and (iv) for Burglary in the Third Degree, two years of Level V
incarceration suspended for eighteen months of Level III probation. Doughty did
not appeal the Superior Court’s judgment.
(5) In January 2016, Doughty violated his probation by leaving the state
multiple times without his probation officer’s permission and was required to serve
three days at the Level IV VOP Center. Later that month, an administrative warrant
was issued for Doughty’s fourth VOP. The warrant alleged that Doughty’s VOPS
included his arrest for new crimes, failure to report to his probation officer, a diluted
urine screen, and a urine screen that tested positive for marijuana.
(6) On March 17, 2016, the Superior Court found that Doughty had
violated his probation. Doughty was sentenced as follows: (i) for Robbery in the
First Degree, nineteen years and six months of Level V incarceration, suspended
after two years for eighteen months of Level III probation with GPS monitoring; (ii)
for Robbery in the Second Degree, five years of Level V incarceration, suspended
for eighteen months of Level III probation with GPS monitoring; (iii) for Conspiracy
in the Second Degree, eighteen months of Level V incarceration, suspended for
eighteen months of Level III probation with GPS monitoring; and (iv) for Burglary
in the Third Degree, two years of Level V incarceration suspended for eighteen
months of Level III probation with GPS monitoring This appeal followed.
(7) In his opening brief``, Doughty admits (as he did at the VOP hearing)
that he violated his probation, but argues that his sentence was excessive and his
VOP counsel was ineffective Our review of a sentence generally ends once we
determine that the sentence is within the statutory limits prescribed by the
legislature1 Once Doughty 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 Doughty’s sentences.2 The Level V sentenced imposed for Doughty’s VOP _
twenty-eight years suspended after two years_did not exceed the twenty-eight years
and six months of Level V time previously suspended for Doughty’s conviction and
was within statutory limits.
(8) When the sentence is within the statutory limits, as it is here, this Court
will not find an abuse of discretion unless it is clear that the sentencing judge relied
on impermissible factors or exhibited a closed mind.3 Doughty appears to claim that
1 Mayes v. State, 604 A.2d 839, 842 (Del. 1992).
2 11 Del. C. § 4334(c); Pavulak v. State, 880 A.2d 1044, 1046 (Del. 2005).
3 Weston v. State, 832 A.2d 742, 746 (Del. 2003).
4
the Superior Court judge relied on his probation officer’s false and misleading
testimony in sentencing him. The record does not support this claim.
(9) Doughty’s probation officer referred to Doughty’ s arrest for heroin and
weapons found at his residence, but acknowledged that the State had dismissed those
charges and that another person shared Doughty’s residence. Doughty also
complains that his probation officer stated that he was unemployed, left the state
without permission, and failed to pay his fmes, but admits that he was unemployed
and left the state without permission. There is no indication in the record that the
Superior Court relied on impermissible factors or sentenced Doughty with a closed
mind. As to Doughty’s ineffective assistance of counsel claim, we decline to
consider that claim for the first time on direct appeal.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:
/l~q
Justice u ' \
4 Fonvz'lle v. State, 2015 WL 5968251, at *2 (Del. Oct. 13, 2015); Sahin v. State, 7 A.3d 450, 451
(Del. 2010).