Smith v. State

IN THE SUPREME COURT OF THE STATE OF DELAWARE
FREDERICK W. SMITH, JR., §
§ No. 76, 2022
Defendant Below, §
Appellant, § Court Below—Superior Court
§ of the State of Delaware
v. §
§ Crim. ID No. 93007368DI (N)
STATE OF DELAWARE, §
§
Appellee. §
Submitted: May 23, 2022
Decided: July 12, 2022
Before SEITZ, Chief Justice; TRAYNOR and MONTGOMERY-REEVES,
Justices.
ORDER
(1) The appellant, Frederick W. Smith, Jr., filed this appeal from the
Superior Court’s order, dated February 23, 2022, denying his motion for correction
of an illegal sentence. The State has moved to affirm the judgment below on the
ground that it is manifest on the face of Smith’s opening brief that his appeal is
without merit. We agree and affirm.
(2) In 1993, a Superior Court jury convicted Smith of two counts of second-
degree unlawful sexual intercourse, third-degree unlawful sexual penetration, and
third-degree assault. In January 1994, the Superior Court sentenced him to a total
of thirty-six years in prison, suspended after thirty-two years for probation. This
Court affirmed on direct appeal.1
(3) Shortly after his release from prison on probation and conditional
release, Smith was charged with a violation of probation (“VOP”) and conditional
release. At a hearing on March 17, 2021, the Superior Court found that Smith had
violated his probation and conditional release and deferred sentencing, ordering that
Smith first undergo a presentencing psychiatric evaluation. On August 31, 2021, the
Superior Court discharged Smith’s conditional release and sentenced him on the
VOP to four years of imprisonment, suspended for two years of Level III probation
with GPS monitoring. The sentencing order also provided that Smith was required
to complete sex offender treatment while on Level III probation and expressed “zero
tolerance” for failure to do so.
(4) On October 7, 2021, a probation officer filed an administrative warrant
alleging that Smith was in violation of probation because, among other alleged
violations, he refused to sign documents allowing a counselor to begin the
assessment for sex offender treatment. At a hearing on November 3, 2021, the
Superior Court found that Smith had violated his probation. The court sentenced
him to four years of imprisonment, suspended after eleven months and successful
1
Smith v. State, 669 A.2d 1 (Del. 1995).
2
completion of the Transitions Sex Offender program for six months of Level III
probation.
(5) Smith did not appeal from the VOP adjudication and sentence. On
January 13, 2022, he filed a motion for correction of illegal sentence, in which he
asserted that the VOP sentence is illegal because the probation officer made false
allegations regarding his refusal to sign the sex offender assessment paperwork and
the other alleged violations. He filed an amendment to the motion on February 4,
2022, in which he contended that the VOP sentence is illegal because the court could
impose no more than thirty days of incarceration for Smith’s “alleged petty violation
of probation.” The Superior Court denied the motion, and Smith has appealed to
this Court.
(6) We review the denial of a motion for correction of sentence for abuse
of discretion.2 To the extent the claim involves a question of law, we review the
claim de novo.3 A sentence is illegal if it exceeds statutory limits, violates double
jeopardy, is ambiguous with respect to the time and manner in which it is to be
served, is internally contradictory, omits a term required to be imposed by statute, is
uncertain as to its substance, or is a sentence that the judgment of conviction did not
authorize.4
2
Fountain v. State, 2014 WL 4102069, at *1 (Del. Aug. 19, 2014).
3
Id.4
Brittingham v. State, 705 A.2d 577, 578 (Del. 1998).
3
(7) We find no error in the Superior Court’s denial of Smith’s motion.
“The narrow function of Rule 35(a) is to ‘permit correction of an illegal sentence,
not to re-examine errors occurring at the trial or other proceedings prior to the
imposition of sentence.’”5 Smith’s attempt to use a motion for correction of sentence
to challenge the court’s determination that he violated his probation is outside the
limited scope of Rule 35(a).6
(8) The VOP sentence also does not exceed statutory limits or the Level V
time that was previously imposed. When sentencing a defendant for a VOP, the trial
court may impose any period of incarceration up to and including the balance of the
Level V time remaining to be served on the original sentence.7 Contrary to Smith’s
assertion, the Superior Court had previously discharged Smith’s conditional release,
but not his probation or the balance of his Level V time.8
5
Warnick v. State, 2017 WL 1056130, at *1 (Del. Mar. 20, 2017) (quoting Brittingham, 705 A.2d
at 578).
6
See Pipkin v. State, 2004 WL 2419087, at *1 (Del. Oct. 26, 2004) (“Rather than filing a direct
appeal to this Court from the finding of a VOP, Pipkin instead chose to file a motion for sentence
modification pursuant to Rule 35. However, Pipkin may not use the instant appeal from the
Superior Court’s denial of his Rule 35 motion to collaterally attack the merits of his VOP
conviction.”); Fisher v. State, 2003 WL 1443050, at *2 (Del. Mar. 19, 2003) (“Fisher may not use
this appeal, from the denial of a reduction of sentence, to collaterally attack the merit of his VOP
conviction.”).
7
11 Del. C. § 4334(c).
8
State’s Mot. To Affirm Ex. 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/ Tamika R. Montgomery-Reeves
Justice
5