Gray v. State

IN THE SUPREME COURT OF THE STATE OF DELAWARE
ERIC A. GRAY, §
§
Defendant Below- § No. 44, 2017
Appellant, §
§
v. § Court Below—Superior Court
§ of the State of Delaware
STATE OF DELAWARE, §
§ Cr. ID 1506002258
Plaintiff Below- §
Appellee. §
Submitted: March 17, 2017
Decided: May 12, 2017
Before STRINE, Chief Justice; VAUGHN, and SEITZ, Justices.
ORDER
This 12th day of May 2017, upon consideration of the appellant’s opening
brief, the State’s motion to affirm, and the record below, it appears to the Court
that:
(1) The appellant, Eric Gray, filed this appeal from the Superior Court’s
December 30, 2016 order sentencing him for a violation of probation (VOP). The
State has filed a motion to affirm the judgment below on the ground that it is
manifest on the face of Gray’s opening brief that his appeal is without merit. We
agree and affirm.
(2) The record reflects that Gray pled guilty on July 1, 2015 to one count
of Drug Dealing with an aggravating factor under 16 Del C. § 4753(2). The
Superior Court sentenced him to fifteen years at Level V incarceration, to be
suspended after eighteen months for six months at Level IV work release and one
year at Level III probation. The sentencing order provided that Gray was to be
evaluated for substance abuse and ordered him to follow all recommendations for
counseling, testing, and treatment at all custodial levels.
(3) While serving the Level IV portion of his sentence at the Morris
Community Corrections Center, Gray was charged with a violation of probation
when he was found in possession of contraband (cigarettes and K-2, a form of
synthetic marijuana) on December 13, 2016. The violation report included a
history of Gray’s supervision at Level IV and set forth five previous program
violations, including a February 2016 violation for possession of cigarettes and K-
2. The violation report also recounted an incident in May 2016 when Gray was
admitted to the intensive care unit at Kent General Hospital, although Gray was not
charged with a program violation for consuming a controlled or dangerous
substance.
(4) The Superior Court held a contested VOP hearing on December 30,
2016. Gray was represented by counsel. After the hearing, the Superior Court
found Gray in violation and sentenced him to thirteen years and six months at
Level V incarceration, to be suspended upon successful completion of the Key
Program for decreasing levels of supervision. Gray appeals his VOP sentence.
2
(5) In his opening brief on appeal, Gray argues that the evidence was
insufficient to prove that he violated probation and that the Superior Court abused
its discretion in sentencing him. Specifically, Gray asserts that the probation
officer’s statements were insufficient proof that he possessed drugs and that the
Superior Court abused its discretion in finding that he had violated probation
without any positive test results proving that Gray had possessed or used drugs.
Gray also asserts that his VOP counsel was ineffective for failing to challenge the
sufficiency of the evidence. Finally, Gray contends that the Superior Court abused
its discretion by sentencing him without first ordering a case study under 11 Del.
C. § 4301 to determine if he needed drug treatment, by failing to follow the
sentencing guidelines, and by failing to impose a fixed period of probation or
suspension of sentence.
(6) At a VOP hearing, if a defendant denies violating his probation, the
State must present some competent evidence to reasonably satisfy the judge that
the defendant’s conduct has not been as good as required by the conditions of his
probation.1 We review the trial court’s finding of a VOP for abuse of discretion.2
As the appealing party, the appellant is required to provide this Court with a copy
of the transcript necessary to review any claims raised on appeal.3 Gray failed to
1
Jenkins v. State, 8 A.3d 1147, 1152-53 (Del. 2010).
2
Cruz v. State, 990 A.2d 409, 412 (Del. 2010).
3
Tricoche v. State, 525 A.2d 151, 154 (Del. 1987).
3
request a transcript of the VOP hearing for this appeal. To the extent Gray
challenges the sufficiency of the evidence presented at the VOP hearing, we are
unable to review his claim without a transcript of the hearing. Thus, the record on
appeal provides no basis for the Court to conclude that the Superior Court abused
its discretion in finding that Gray committed a VOP. Moreover, with respect to his
claim that counsel was ineffective for failing to challenge the sufficiency of the
evidence at the VOP hearing, this Court will not consider such a claim for the first
time on direct review even if Gray had provided the necessary transcript.4
(7) Gray’s remaining claim is that the Superior Court erred by sentencing
him without first ordering a case study to determine his treatment needs, by failing
to sentence him in accordance with the SENTAC guidelines, and by failing to
impose a fixed period of probation or suspension of sentence. We find no merit to
Gray’s assertions.
(8) This Court’s review of a sentence generally is limited to determining
whether the sentence is within statutory limits.5 Once the State has proven by a
preponderance of evidence that a VOP has occurred, the Superior Court is
authorized to 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 In this case, the
4
Foster v. State, 2009 WL 1456992 (Del. May 26, 2009).
5
Mayes v. State, 604 A.2d 839, 842-43 (Del. 1992).
6
11 Del. C. § 4334(c) (2007).
4
Superior Court reimposed the balance of the Level V time remaining on Gray’s
sentence, but suspended all of it upon his successful completion of the Level V
Key program. This sentence was well within statutory limits, was not excessive,
and in no way reflects a closed mind by the sentencing judge.7
NOW, THEREFORE, IT IS ORDERED that the judgment of the Superior
Court is AFFIRMED.
BY THE COURT:
/s/ Collins J. Seitz, Jr.
Justice
7
See Weston v. State, 832 A.2d 742, 746 (Del. 2003).
5