Bouyer-Bello v. State of Delaware

• Court: Supreme Court of Delaware
• Decided: April 26, 2021
• Docket: 44, 2021
• Status: Published

Opinion

IN THE SUPREME COURT OF THE STATE OF DELAWARE

YOLANDA BOUYER-BELLO, § § No. 44, 2021 Defendant Below, § Appellant, § Court Below—Superior Court § of the State of Delaware v. § § Cr. ID No. K1908004533 STATE OF DELAWARE, § § Plaintiff Below, § Appellee. §

Submitted: April 21, 2021 Decided: April 26, 2021

Before SEITZ, Chief Justice; VALIHURA and VAUGHN, Justices.

ORDER

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, Yolanda Bouyer-Bello, filed this appeal from her

sentencing for a violation of probation (“VOP”). The State has moved to affirm the

judgment below on the ground that it is manifest on the face of Bouyer-Bello’s

opening brief that the appeal is without merit. We agree and affirm.

(2) On January 2, 2020, Bouyer-Bello pleaded guilty to misdemeanor theft

and second-degree criminal trespass. The Superior Court sentenced her as follows:

for criminal trespass, to six months of imprisonment, suspended for one year of

Level II probation; and for theft, to one year of imprisonment, suspended for one year of Level II probation. On January 30, 2020, the Superior Court modified the

sentence order to include substance abuse evaluation and monitoring by the

Treatment Access Center (“TASC”). Bouyer-Bello did not appeal from either of the

January 2020 sentencing orders.

(3) On August 14, 2020, the Superior Court found Bouyer-Bello in

violation of probation (“VOP”). The court sentenced her as follows: for criminal

trespass, to six months of imprisonment, suspended for one year of Level III

probation; and for theft, to one year of imprisonment, with credit for three days

served, suspended for one year at Level IV DOC Discretion, followed by one year

of a Level III intensive outpatient treatment program. She did not appeal from the

August 14, 2020 sentencing order.

(4) On January 7, 2021, a probation officer filed a VOP report alleging that

Bouyer-Bello had violated the terms of her supervision by, among other things,

cutting off her GPS ankle monitor. At a video VOP hearing on January 22, 2021,

Bouyer-Bello’s counsel stated that Bouyer-Bello admitted that she cut off her GPS

ankle monitor.1 Moreover, when Bouyer-Bello addressed the court, she herself

admitted that she had cut off the ankle monitor.2

1 Motion to Affirm, Exhibit F, at 2:16-17. 2 Id. at 12:17. 2 (5) The Superior Court found Bouyer-Bello in violation and sentenced her

as follows: for criminal trespass, to six months of imprisonment, suspended for one

year of Level III probation; for theft, to eleven months and twenty-seven days of

imprisonment, suspended after eight months for one year of Level III probation.

Bouyer-Bello has appealed.

(6) On appeal, Bouyer-Bello does not challenge the Superior Court’s

finding that she violated probation. Instead, she challenges only the sentence

imposed. “It is well-established that appellate review of sentences is extremely

limited.”3 Our review of a sentence generally ends upon a determination that the

sentence is within the statutory limits prescribed by the legislature.4 If the sentence

falls within the statutory limits, “we consider only whether it is based on factual

predicates which are false, impermissible, or lack minimal reliability, judicial

vindictiveness or bias, or a closed mind.”5 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.6

(7) In this case, the Superior Court imposed a VOP sentence that was

within the time remaining on Bouyer-Bello’s original sentence. Thus, we find no

3 Kurzmann v. State, 903 A.2d 702, 714 (Del. 2006). 4 Mayes v. State, 604 A.2d 839, 842 (Del. 1992). 5 Kurzmann, 903 A.2d at 714. 6 11 Del. C. § 4334(c). 3 reversible error with respect to the VOP sentence for the theft offense. But the State

has acknowledged an error in the sentence that the Superior Court originally imposed

for second-degree criminal trespass, and that error has carried through to the VOP

sentence that is at issue in this appeal.

(8) Second-degree criminal trespass is an unclassified misdemeanor.7 Title

11, Section 4206(c) of the Delaware Code provides that the “sentence for an

unclassified misdemeanor shall be a definite sentence fixed by the court in

accordance with the sentence specified in the law defining the offense.”8 If the

statute defining the offense does not specify a sentence, then “the sentence may

include up to 30 days incarceration at Level V and such fine up to $575, restitution

or other conditions as the court deems appropriate.”9 The statute defining the offense

of second-degree criminal trespass does not specify a sentence.10 Under Section

4206(c), the maximum allowable term of incarceration for that offense was therefore

thirty days, and the six-month sentence that the Superior Court imposed exceeded

the statutory limit.

NOW, THEREFORE, IT IS ORDERED that the judgment of the Superior

Court, insofar as it pertains to the finding of the violation of probation, is

7 11 Del. C. § 822. 8 Id. § 4206(c). 9 Id. 10 Id. § 822. 4 AFFIRMED. The matter is REMANDED to the Superior Court for the purpose of

correcting the defendant’s sentence. The motion to expedite is moot. Jurisdiction is

not retained.

BY THE COURT:

/s/ Karen L. Valihura Justice