IN THE SUPREME COURT OF THE STATE OF DELAWARE
SEBASTIAN CARNEY, §
§ No. 581, 2014
Defendant-Below, §
Appellant, §
§ Court Below: Superior Court
v. § of the State of Delaware,
§ in and for Sussex County
STATE OF DELAWARE, § Cr. ID Nos. 1008015411,
§ 1102006677, 1105007856,
Plaintiff-Below, § and 1209003022
Appellee. §
Submitted: November 12, 2014
Decided: December 15, 2014
Before STRINE, Chief Justice, HOLLAND, and VALIHURA, Justices.
ORDER
This 15th day of December 2014, 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 defendant-appellant, Sebastian Carney, filed this appeal from the
Superior Court’s order sentencing him for violating probation. The State has filed
a motion to affirm the judgment below on the ground that it is manifest on the face
of Carney’s opening brief that his appeal is without merit. We agree and affirm.
(2) The record reflects that Carney pled guilty in March 2011 to one
count of Theft. He was sentenced to one year at Level V suspended entirely for
probation. In October 2011, Carney pled guilty to another count of Theft for
which he was sentenced to one year at Level V suspended entirely for probation.
He also pled guilty to a separate charge of Burglary in the Third Degree for which
he was sentenced to three years at Level V (with credit for 130 days served) to be
suspended after serving six months in prison for decreasing levels of supervision.
In September 2012, Carney pled guilty to Possession of Heroin for which he was
sentenced to one year at Level V suspended entirely for probation. For every new
criminal conviction, Carney also was found in violation of his probation with
respect to his earlier convictions and sentenced accordingly. The record reflects
that, since March 2011, Carney has pled guilty to four criminal charges for which
he was sentenced to a total period of six years at Level V incarceration. Most of
that Level V time was suspended for probation. As of November 2013, Carney
had four years and six months of Level V time remaining to be served on his
sentences.
(3) In July 2014, Carney was charged with a VOP for failure to report and
for failing to comply with the special conditions of his probationary sentences.
The Superior Court found Carney in violation and sentenced him on September 16,
2014 to a total period of four years and one month at Level V incarceration to be
suspended after serving one year and one month in prison for decreasing levels of
supervision. This appeal followed.
2
(4) In his opening brief on appeal, Carney asserts that the Superior Court
imposed an excessive sentence under the circumstances and failed to credit him
with time served. He also contends that the TASC counselor who appeared at the
VOP hearing lied under oath. Carney, however, does not challenge the Superior
Court’s finding that he violated the terms of his probation by failing to report and
by failing to comply with his special conditions.
(5) Upon finding a defendant in violation of probation, 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.1 In this case,
contrary to Carney’s contention, the record reflects that Carney had a balance of
four years and six months remaining to be served on his original sentences. Upon
finding Carney in violation of probation, the Superior Court sentenced him to a
total period of four years and one month at Level V incarceration, but suspended
his sentence after only one year and one month in prison. This sentence was
within statutory limits, was not excessive given his repeated failures to bring
himself into compliance with the law generally and with the conditions of his
probation (notwithstanding the probation officer’s recommendation for a lesser
sentence), and does not reflect a closed mind by the sentencing judge.2 Indeed, the
1
11 Del. C. § 4334(c) (2007).
2
See Weston v. State, 832 A.2d 742, 746 (Del. 2003).
3
record reveals that the Superior Court was reasoned in dealing with Carney, and
issued the sentence it did only after he failed to take advantage of several earlier
instances of leniency. Under the circumstances, we conclude that the Superior
Court did not err or abuse its discretion in rejecting the probation officer’s
recommendation or in exceeding the sentencing guidelines for Carney’s fourth
VOP in three years.3
(6) Moreover, to the extent that Carney challenges the TASC counselor’s
testimony, this Court is unable to review that claim because Carney failed to order
and provide this Court with a copy of the transcript of the VOP hearing and
sentencing. As we have held many times, the failure to include adequate
transcripts of the proceedings, as required by the rules of the Court, precludes
appellate review of a defendant’s claims of error in the proceedings below.4
NOW, THEREFORE, IT IS ORDERED that the judgment of the Superior
Court is AFFIRMED.
BY THE COURT:
/s/ Leo E. Strine, Jr.
Chief Justice
3
See Wynn v. State, 23 A.3d 145, 148-49 (Del. 2011).
4
Tricoche v. State, 525 A.2d 151, 154 (Del. 1987).
4