IN THE SUPREME COURT OF THE STATE OF DELAWARE
FLOYD A. SMITH, §
§
Defendant Below, § No. 24, 2017
Appellant, §
§ Court Below—Superior Court
v. § of the State of Delaware
§
STATE OF DELAWARE, § Cr. ID No. 1209014436
§
Plaintiff Below, §
Appellee. §
Submitted: February 17, 2017
Decided: April 18, 2017
Before STRINE, Chief Justice; VALIHURA, and SEITZ, Justices.
ORDER
This 18th day of April 2017, upon consideration of the appellant’s opening
brief, the appellee’s motion to affirm, and the record below, it appears to the Court
that:
(1) The appellant, Floyd A. Smith, filed this appeal from the Superior
Court’s December 30, 2016 order sentencing him for his second 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 Smith’s opening
brief that the appeal is without merit. We agree and affirm.
(2) The record reflects that, on January 22, 2013, Smith pled guilty to
three counts of Burglary in the Second Degree. For each burglary count, Smith
was sentenced, effective September 26, 2012, to eight years of Level V
incarceration, suspended after one year for Level III probation. The sentencing
order further provided that Smith was to be evaluated for substance abuse and
follow any recommendations for treatment. Smith did not appeal the Superior
Court’s judgment.
(3) In March 2016, an administrative warrant was issued for Smith’s first
VOP. The warrant alleged that Smith had failed to request authorization to move
out of state, failed to notify his probation officer of his change of address, tested
positive several times for drugs, and failed to follow through with substance abuse
treatment. On April 1, 2016, the Superior Court found Smith violated his
probation.
(4) For the first count of Burglary in the Second Degree, Smith was
sentenced to seven years and five months of Level V incarceration, suspended for
one year of Level IV Crest, to be suspended upon successful completion for one
year of Level III Crest Aftercare. For each of the other two counts of Burglary in
the Second Degree, Smith was sentenced to seven years and five months of Level
V incarceration, suspended for decreasing levels of supervision. The VOP
sentencing order provided that the Treatment Access Center (“TASC”) would
evaluate and monitor Smith. Smith did not appeal the VOP sentence.
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(5) In December 2016, an administrative warrant was issued for Smith’s
second VOP. The warrant alleged that Smith violated his probation by testing
positive for opiates. On December 30, 2016, the Superior Court found that Smith
violated his probation.
(6) For the first count of Burglary in the Second Degree, Smith was
sentenced to six years and three months months of Level V incarceration,
suspended for one year of Level V Inpatient Drug Treatment, to be suspended
upon successful completion for one year of Level IV Crest, to be suspended upon
successful completion for one year of Level III Crest Aftercare. For each of the
other two counts of Burglary in the Second Degree, Smith was sentenced to seven
years and five months of Level V incarceration, suspended for one year of Level
Level III Crest Aftercare. This appeal followed.
(7) In his opening brief, Smith argues that: (i) he had completed the Level
IV Crest program and was awaiting his release to Level III supervision at the time
of his VOP; (ii) the Superior Court erred in sentencing Smith to Level V Inpatient
Drug Treatment and Level IV Crest without obtaining a case study and without
considering Smith’s completion of the Level IV Crest program and mental health
needs as raised by his counsel; and (iii) the length of his probation violates 11 Del.
C. § 4333. These arguments are without merit.
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(8) As the appealing party, Smith was required to furnish “a transcript of
all evidence relevant to the challenged finding or conclusion.”1 Smith failed to
request a transcript of the VOP hearing for this appeal. To the extent Smith claims
the Superior Court ignored his counsel’s arguments at the VOP hearing, we cannot
review those claims without a transcript of the hearing.2 As to Smith’s suggestion
that his positive test for opiates after his completion of the Level IV Crest Program
could not constitute a VOP, Smith ignores that he was subject to TASC monitoring
and his probation included successful completion of one year of Level III Crest
Aftercare.
(9) As to Smith’s claim that the Superior Court erred in sentencing him to
Level V Inpatient Drug Treatment and Level IV Crest without obtaining a case
study, the Superior Court was not required to obtain a case study before sentencing
him for his VOP. Finally, the length of Smith’s probation (one year of Level IV
Crest and one year of Level III Crest Aftercare) did not violate 11 Del. C. § 1433.3
1
Del. Supr. Ct. R. 14(e).
2
Tricoche v. State, 525 A.2d 151, 154 (Del. 1987).
3
11 Del. C. § 4333(b)(1) (providing that length of probation for any violent felony, which is
defined by Section 4201(c) to include Burglary in the Second Degree, shall be limited to two
years); 11 Del. C. § 4333(g)(2) (providing that “the phrase ‘period of probation or suspension of
sentence’ shall not include any period of a sentence that is designated by the sentencing court to
be served at Supervision Accountability Level IV as defined in § 4204(c)(4) of this title”).
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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/ Collins J. Seitz, Jr.
Justice
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