IN THE SUPERIOR COURT OF THE STATE OF DELAWARE
JAMES DURHAM, )
)
Appellant, )
)
v. ) I.D. No. 1507019715
) I.D. No. 1508002923
)
STATE OF DELAWARE, )
)
Appellee. )
Submitted: August 25, 2016
Decided: November 3, 2016
CORRECTED MEMORANDUM OPINION
On Appeal from the Court of Common Pleas
AFFIRMED
James Durham, Appellant.
Tianna Bethune, Esq., Deputy Attorney General, Department of Justice, 820 N.
French Street, Wilmington, DE 19801, Attorney for Appellee.
ROCANELLI, J.
PROCEDURAL BACKGROUND
On August 4, 2015, Defendant James Durham (“Defendant”) was arrested
and charged with Shoplifting1 after stealing electronics from a Boscov’s
department store in Newark, Delaware (“August 4 Shoplifting”). At the time of
Defendant’s arrest, Defendant was a suspect in the July 16, 2015 theft of a power
drill from a Lowe’s home improvement store in Middletown, Delaware.
On August 5, 2015, following an investigation by the Middletown Police
Department, Defendant was charged with a second count of Shoplifting in
connection with the July 16, 2015 theft of the power drill (“July 16 Shoplifting”).2
On August 21, 2015, Defendant appeared before the Court of Common Pleas
(“Trial Court”) and pleaded guilty to both the August 4 and July 16 Shopliftings.
As to the July 16 Shoplifting, Defendant was sentenced to 12 months at Level V,
suspended for 1 year at Level II probation. As to the August 4 Shoplifting,
Defendant was sentenced to 12 months at Level V, suspended for 1 year at Level II
probation. The Court mandated substance abuse evaluation and treatment as a
condition of probation. Accordingly, when sentencing Defendant, the Trial Court
gave Defendant the opportunity to avoid incarceration and also offered the benefit
1
11 Del. C. § 840.
2
A Lowe’s employee provided the Middletown Police Department with a surveillance video
depicting an individual taking the power drill without paying. The investigating officer
conducted a pawn inquiry using the power drill’s model number. The pawn inquiry revealed that
Defendant had recently pawned a power drill with the same model number. Upon conducting a
database inquiry, the investigating officer discovered that Defendant matched the appearance of
the individual depicted in the surveillance video.
1
of substance abuse treatment in the community. Defendant failed to take
advantage of those opportunities.
On December 10, 2015, a urinalysis was conducted on Defendant by
Defendant’s supervising probation officer.3 The urinalysis indicted that Defendant
tested positive for cocaine and opiates. The terms and conditions of Defendant’s
probation prohibited Defendant from consuming controlled substances without a
prescription.
On January 5, 2016, Defendant failed to report for an office visit with
Defendant’s supervising probation officer. The terms of Defendant’s probation
required Defendant to report to his supervising probation officer as directed.
On January 8, 2016, the Middletown Police Department issued a warrant for
Defendant’s arrest after Defendant stole electronics from a Wal-Mart in
Middletown, Delaware (“January 8 Shoplifting”).4 The terms of Defendant’s
probation prohibited Defendant from committing a criminal offense during his
probationary period.
3
Defendant’s Shoplifting probation required Defendant to submit to random drug screenings at
the request of Defendant’s supervising probation officer.
4
On March 18, 2016, Defendant appeared before the Trial Court and pleaded guilty to the
January 8 Shoplifting. Defendant was sentenced to 1 year at Level V, suspended for 12 months
at Level III. Defendant’s appeal does not implicate the January 8 Shoplifting conviction or any
violations of probation pursuant thereto. Nevertheless, the January 8, 2016 issuance of an arrest
warrant for Defendant provided a basis, among others, for the violation of probation report filed
by Defendant’s supervising probation officer on January 13, 2016.
2
On January 13, 2016, Defendant’s supervising probation officer filed a
report alleging violations of probation against Defendant. Defendant’s supervising
probation officer cited the December 10 urinalysis, Defendant’s failure to report to
the January 5 office visit, and Defendant’s alleged January 8 Shoplifting as the
basis for the violations. Defendant’s supervising probation officer also noted
Defendant’s disregard for authority as evidence that Defendant was not amenable
to community-based supervision. Defendant’s supervising probation officer
requested for Defendant to be held at a higher supervision level.
Two days later, on January 15, 2016, Defendant was arrested and charged in
Aberdeen, Maryland, for Theft and Assault Second Degree (“Maryland Theft”).
Defendant was found guilty in connection with the Maryland Theft and sentenced
to sixty days incarceration at the Harford County Detention Center in Bel Air,
Maryland. The terms of Defendant’s Delaware probation prohibited Defendant
from committing a criminal offense during his probationary period. The terms of
Defendant’s Delaware probation also prohibited Defendant from leaving the State
of Delaware without receiving approval from Defendant’s supervising probation
officer. The criminal conduct in Maryland violated these conditions.
On March 4, 2016, Defendant’s supervising probation officer filed a report
alleging a second violation of probation. Defendant’s supervising probation officer
cited the Maryland Theft as the basis for the second violation. Defendant’s
3
supervising probation officer again requested for Defendant to be held at a higher
supervision level.
On April 8, 2016, after his release by the Maryland authorities, Defendant
appeared before the Trial Court for an uncontested hearing regarding Defendant’s
violations of probation (“April 8 VOP Hearing”). The Trial Court found that
Defendant could not or would not conform his conduct to the obligations imposed
on him by statute, by the Court, or by the terms and conditions of his probation.
Defendant was sentenced for violation of probation after a violation-of-probation
hearing was held, and the Trial Court determined that Defendant had violated the
terms of his probation.
In crafting a sentence for Defendant, the Trial Court considered Defendant’s
extensive criminal history of numerous convictions that preceded the Shoplifting
convictions at issue in this case, including convictions for Assault, Theft, Burglary,
Robbery, Criminal Impersonation, Possession of a Controlled Substance, and
Shoplifting. Defendant had also been found in violation of probation on more than
ten prior occasions.
By Order dated April 8, 2016, Defendant’s original sentence was revoked;
Defendant was sentenced to 6 months at Level V for the July 16 Shoplifting
conviction; and 3 months at Level V for the August 4 Shoplifting conviction
(“VOP Sentencing Order”). Accordingly, in consideration of Defendant’s history
4
of convictions and probation violations, the Trial Court determined Defendant was
not amenable to community-based supervision and sentenced Defendant to nine
months at Level V, no probation to follow.
On June 29, 2016, Defendant appealed the VOP Sentencing Order to this
Court as a self-represented litigant. Defendant challenges the legality of his
sentence. Defendant submitted briefing in support of the appeal, and the State
submitted briefing in opposition thereto. This is the Court’s decision regarding
Defendant’s appeal of the VOP Sentencing Order.
DISCUSSION
Defendant argues that the VOP Sentencing Order constituted an abuse of
discretion. Specifically, Defendant argues that the Trial Court abused its discretion
by deviating from the Truth in Sentencing Act guidelines established by the
Sentencing Accountability Commission (“SENTAC Guidelines”). Defendant also
contends that the Trial Court misinterpreted Defendant’s criminal history and
failed to articulate the aggravating circumstances that supported a deviation from
the SENTAC Guidelines. Finally, Defendant argues that the Trial Court’s failure
to include substance abuse treatment in Defendant’s sentencing order also
constitutes an abuse of discretion.
5
A. Standard of Review for Sentencing
A sentencing judge has the flexibility to consider the nature of the offense,
the character of the defendant, and all other information related to mitigation or
aggravation of the sentence to be imposed.5 Moreover, the sentencing judge has
“broad discretion to consider ‘information pertaining to a defendant’s personal
history and behavior which is not confined exclusively to the conduct for which
that defendant was convicted.’”6 A sentencing judge may choose to extend or
withhold leniency based upon the individual defendant and the unique
circumstances of a particular case.7 Accordingly, sentencing decisions are
reviewed under an abuse of discretion standard.8
Appellate review of sentencing is “extremely limited.”9 The reviewing
court’s inquiry “generally ends upon determination that the sentence is within the
statutory limits prescribed by the legislature.”10 A sentence that falls within
statutorily prescribed limits will be set aside only where the sentence is “based on
5
See Nastatos v. State, 2014 WL 1512287, at *4 (Del. Apr. 15, 2014); Kurzmann v. State, 903
A.2d 702, 714 (Del. 2006); Weston v. State, 832 A.2d 742, 746 (Del. 2003).
6
Siple v. State, 701 A.2d 79, 85 (Del. 1997) (quoting Mayes v. State, 604 A.2d 839, 842 (Del.
1992)).
7
Siple, 701 A.2d at 85 (citing United States v. Jones, 997 F.2d 1475, 1478 (D.C. Cir. 1993)).
8
Fink v. State, 817 A.2d 781, 791 (Del. 2003) (citing Cheeks v. State, 2000 WL 1508578, at *2
(Del. Sept. 25, 2000)); Walt v. State, 727 A.2d 836, 840 (Del. 1999) (citing Mayes, 604 A.2d at
842–43).
9
Wyant v. State, 2016 WL 3549101, at *2 (Del. May 25, 2016); Nelson v. State, 2016 WL
3474354, at *2 (Del. May 24, 2016); Smith v. State, 2014 WL 5421251, at *2 (Del. Oct. 23,
2014); Kurzmann, 903 A.2d at 714 (quoting Mayes, 604 A.2d at 842).
10
Scannapieco v. State, 2016 WL 3450022, at *2 (Del. May 20, 2016) (quoting Ward v. State,
567 A.2d 1296, 1297 (Del. 1989)); White v. State, 2004 WL 906531, at *1 (Del. Apr. 20, 2004);
Mayes, 604 A.2d at 842; Gaines v. State, 571 A.2d 765, 766 (Del. 1990).
6
factual predicates which are false, impermissible, or lack minimal reliability,
judicial vindictiveness or bias, or a closed mind.”11
B. The Trial Court’s Deviation from SENTAC Guidelines Does Not
Constitute a Proper Basis for Appeal.
The Delaware Supreme Court has consistently held that the SENTAC
Guidelines are non-binding,12 and that “[a] defendant has no legal or constitutional
right to appeal a statutorily authorized sentence simply because it does not conform
to the sentencing guidelines established by the Sentencing Accountability
Commission.”13 Defendant’s sentence is within the statutorily prescribed
limitations for Defendant’s Shoplifting convictions.14 Therefore, the Trial Court’s
deviation from the SENTAC Guidelines, taken alone, does not constitute an abuse
of discretion and is not a proper basis for appeal.15
11
Hickman v. State, 2014 WL 4463142, at *2 (Del. Sept. 10, 2014) (quoting Kurzmann, 903
A.2d at 714). See also Scannapieco, 2016 WL 3450022, at *2 (quoting Ward, 567 A.2d at 1297)
(“However, a sentencing court abuses its discretion if it sentences on the basis of inaccurate or
unreliable information.”); Mayes, 604 A.2d at 843 (“Thus, in reviewing a sentence within
statutory limits, this Court will not find error of law or abuse of discretion unless it is clear from
the record below that a sentence has been imposed on the basis of demonstrably false
information or information lacking minimal indicium of reliability.”).
12
Brochu v. State, 2016 WL 690650, at *4 (Del. Feb. 19, 2016) (citing Mayes, 604 A.2d at 845);
Nastatos, 2014 WL 1512887, at *4 (citing Dennis v. State, 2013 WL 1749807, at *3 (Del. Apr.
23, 2013)); Kurzmann, 2008 WL 2461804, at *1.
13
Mayes, 604 A.2d at 845 (citing Gaines, 571 A.2d at 766–67). See also Brochu, 2016 WL
690650, at *4; Mitchell v. State, 2015 WL 7575022, at *2 (Del. Nov. 24, 2015); Vanderhoeven v.
State, 2009 WL 1940723, at *4 (Del. July 7, 2009); Siple, 701 A.2d at 83 (Del. 1997).
14
The combined maximum penalty for the July 16 and August 4 Shoplifting convictions is two
years. See 11 Del. C. § 840(d). The Trial Court imposed a sentence of nine months on
Defendant.
15
See Brochu, 2016 WL 690659, at *4 (“It is well-settled that a deviation from the voluntary and
non-binding sentencing guidelines is not a basis to vacate a sentence that is within statutory
7
C. Defendant’s Sentence Was Not an Abuse of Discretion Because the Trial
Court Made an Appropriate Determination That Defendant Was Not
Amenable to Community-based Supervision and Sentenced Defendant
Within Statutory Limits.
Defendant argues that the VOP Sentencing Order constitutes an abuse of
discretion because the sentence was based solely upon a misinterpretation of
Defendant’s criminal history. Specifically, Defendant asserts that the Trial Court
sentenced Defendant under the mistaken belief that Defendant violated his
probation eight times where Defendant had only violated once.16 Moreover,
Defendant argues that the Trial Court improperly failed to articulate the
aggravating circumstances that supported a deviation from the SENTAC
Guidelines. Finally, Defendant contends that the Trial Court’s failure to include
substance abuse treatment in its sentencing order also constitutes an abuse of
discretion.
limits.”); Dennis, 2013 WL 1749807, at *3 (citing Benge v. State, 2004 WL 2743431, at *1 (Del.
Nov. 12, 2004)) (“SENTAC guidelines are voluntary and nonbinding and do not provide a basis
for appeal.”); Vessels v. State, 2009 WL 4847619, at *1 (quoting Mayes, 604 A.2d at 845) (“The
SENTAC guidelines are voluntary and non-binding, and they too do not provide ‘any legal or
constitutional right to appeal . . . a statutorily authorized sentence.’”); Kurzmann, 2008 WL
2461804, at *1 (citing Ward, 567 A.2d at 1297) (“It is well-settled that the SENTAC guidelines
are voluntary and non-binding and, therefore, do not provide an independent basis for a claim of
an illegal sentence.”); Siple, 701 A.2d at 83 (citing Gaines, 571 A.2d at 767) (“At the present
time, there is no constitutional or statutory right in Delaware to appeal a criminal punishment on
the sole basis that it deviates from the SENTAC sentencing guidelines.”).
16
“THE COURT: But on the probation for the [July 16 Shoplifting], you’ve been violated: one,
two, three, four, five, six, seven – seven times. This makes your eighth violation.” State v.
Durham, I.D. Nos. 1507019715 & 1508002923, at 6 (Del. Com. Pl. Apr. 8, 2016)
(TRANSCRIPT).
8
The record in this case reflects that the VOP Sentencing Order was not based
on impermissible or unreliable factual predicates.17 Instead, the Trial Court based
its decision on Defendant’s extensive criminal history and repeated disregard for
the terms of his probation. Defendant does not demonstrate that the Trial Court
failed to consider relevant information, or maintained a “preconceived bias” in
imposing its sentence.18 To the contrary, the Trial Court appropriately considered
reliable information pertaining to Defendant’s character and criminal conduct that
extended beyond Defendant’s Shoplifting convictions.19
The United States Supreme Court has explained that probation is a privilege,
not a right, “designed to provide a period of grace in order to aid the rehabilitation
of a penitent offender; to take advantage of an opportunity for reformation.” 20 The
Trial Court permissibly exercised its significant “flexibility in administration” in
deciding to revoke Defendant’s probation based on a pattern of disregard for
authority and the law.21
Furthermore, while Defendant may need substance abuse treatment, the Trial
Court gave Defendant the opportunity to avoid incarceration and receive treatment
in the community during his probationary term. Moreover, nine months at Level V
17
See Hickman, 2014 WL 4463142, at *2 (quoting Kurzmann, 903 A.2d at 714).
18
Weston, 832 A.2d at 746.
19
See Siple, 701 A.2d at 85.
20
Burns v. United States, 287 U.S. 216, 220 (1932).
21
Id.
9
is not enough time to be evaluated for and complete an in-patient substance abuse
treatment program at Level V supervision. Whether or not to require substance
abuse treatment as a sentencing condition is well within the sound discretion of the
Trial Court.
As to Defendant’s contention that the Trial Court failed to explicitly
articulate applicable aggravating circumstances on the record, the Delaware
Supreme Court has declined to hold that a sentencing court’s failure to make a
record of its reasons for departing from the SENTAC Guidelines constitutes
reversible error.22 The Trial Court permissibly elected to provide significant
weight to Defendant’s convictions and violations of probation.23 “Repetitive
criminal conduct is a venerable basis in our criminal justice system for an
22
See, e.g., Brochu, 2016 WL 690650, at *5 (“To the extent Brochu argues that the Superior
Court violated a sentencing guideline because the court failed to state the aggravating factor ‘for
the record’ during the sentencing hearing, his claim is without merit.”); Mitchell, 2015 WL
7575022, at *2 (citing Mayes, 604 A.2d at 845) (“In addition, this Court has rejected the
argument that a sentencing court’s failure to make a record of its reasons for departing from
SENTAC Guidelines constitutes reversible error.”); Taylor v. State, 28 A.3d 399, 410 (Del.
2011) (finding that a judge’s failure to expressly discuss mitigating factors prior to imposing a
death sentence did not automatically render the sentence arbitrary or capricious, and that
requiring such an approach would reflect a preference for form over substance); Cruz v. State,
990 A.2d 409, 417 (Del. 2010) (finding that a judge’s failure to expressly articulate the reasons
for departing from the SENTAC-suggested sentence on the record did not suggest that the
sentence was imposed with a closed mind); Moncavage v. State, 2010 WL 4108832, at *2 (Del.
Oct. 19, 2010) (“Finally, the sentence is appropriate and the judge did not need to articulate
aggravating factors verbally at the sentencing hearing.”); Denston v. State, 2008 WL 2752287, at
*1 (Del. July 16, 2008) (finding that a defendant has no right to appeal a statutorily-authorized
sentence on the grounds that the sentencing court did not explicitly articulate its reasons for
departing from the SENTAC guidelines); Mayes, 604 A.2d at 846 (finding that the court’s failure
to comply with 11 Del. C. § 4204(m) by identifying aggravating factors justifying the sentence
imposed cannot be reasonably construed as a mandate or basis for reversible error).
23
See Mitchell, 2015 WL 7575022, at *2.
10
enhanced punishment within the statutory range set for the specific conviction at
issue.”24 It was within the Trial Court’s broad discretion to consider Defendant’s
criminal history in crafting a sentence for the violations of probation.
CONCLUSION
The record does not indicate that the VOP Sentencing Order was based upon
demonstrably false information, judicial vindictiveness, or a closed mind. The
transcript of the April 8 VOP Hearing reveals that the Trial Court permissibly
exercised its discretion in crafting a sentence based upon Defendant’s criminal
history and repeated violations of probation. Defendant’s sentence is within the
statutorily prescribed limitations, consistent with the recommendations of
Defendant’s supervising probation officer, and appropriately reflects Defendant’s
lack of amenability to community-based supervision. Accordingly, it was within
the Trial Court’s discretion to revoke Defendant’s probation and impose a sentence
that deviated from the SENTAC Guidelines.25 Defendant does not demonstrate
vindictive or arbitrary action by his sentencing judge.26 Therefore, the appeal does
not present meritorious grounds for relief.
24
Siple, 701 A.2d at 85 (emphasis in original).
25
See Cruz, 990 A.2d at 416.
26
See Francis v. State, 2006 WL 4459527, at *2 (Del. Dec. 22, 2006).
11
NOW, THEREFORE, this 3rd day of November, 2016, the April 8, 2016
VOP Sentencing Order by the Court of Common Pleas is hereby AFFIRMED.
IT IS SO ORDERED.
Andrea L. Rocanelli
___________________________________
The Honorable Andrea L. Rocanelli
12