Comeger v. State

• Court: Supreme Court of Delaware
• Decided: November 22, 2019
• Docket: 344, 2019
• Status: Published

Opinion

IN THE SUPREME COURT OF THE STATE OF DELAWARE

RICARDO COMEGER, § § Defendant Below, § No. 344, 2019 Appellant, § § v. § Court Below–Superior Court § of the State of Delaware STATE OF DELAWARE, § § Cr. ID 1612009800 (N) Plaintiff Below, § Appellee. § §

Submitted: September 17, 2019 Decided: November 22, 2019

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

ORDER

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 appellant, Ricardo Comeger, appeals from the Superior

Court’s July 9, 2019 order sentencing him for his fourth violation of probation

(“VOP”). The State has filed a motion to affirm the judgment below on the

ground that it is manifest on the face of Comeger’s opening brief that his

appeal is without merit. We agree and affirm. (2) The record reflects that, in July 2017, Comeger pleaded guilty to

one count of aggravated menacing in Case Number 1612009800.1 The

Superior Court sentenced Comeger to five years of Level V incarceration,

suspended for one year of Level III probation. Between 2017 and 2019, the

Superior Court found Comeger in violation of the terms of his probation on

three occasions.

(3) On July 9, 2019, the Superior Court found Comeger in violation

of the terms of his probation for a fourth time. The Superior Court sentenced

Comeger to four years and nine months of Level V incarceration, suspended

after three months for three months of Level IV Work Release, followed by

one year of Level III probation. This appeal followed.

(4) Comeger does not dispute that he violated the terms of his

probation. To the contrary, Comeger admits his guilt. However, he asks this

Court to modify his sentence to remove the Work Release condition.

(5) We affirm the Superior Court’s judgment. Once the State has

proven by a preponderance of the evidence that a VOP has occurred, the

Superior Court has the discretion to require the probationer to serve the

original sentence or any lesser sentence that it deems appropriate. 2 If the

1 At the same time, the Superior Court also sentenced Comeger on one count of breach of conditions of release in a different case. 2 State v. Sloman, 886 A.2d 1257, 1260 (Del. 2005).

2 sentence imposed falls within statutory limits, we will not disturb the sentence

on appeal unless the probationer can establish that the sentencing judge relied

on impermissible factors or exhibited a closed mind when sentencing him.3

(6) In this case, the Superior Court’s July 9, 2019 sentence fell

within the statutory limits prescribed by the legislature, and Comeger does not

contend that the judge relied on impermissible factors or sentenced him with

a closed mind. To the extent Comeger alleges he is entitled to credit for time

he served in an unspecified case that was ultimately dismissed, the Court is

unable to review it. As the appealing party, Comeger had the burden to

request and provide the Court with the transcript necessary to give the Court

a means to review the claim of error.4 Without the transcript of the July 9,

2019 VOP and sentencing hearing, we are unable to review any claim that

Comeger was denied credit for time previously served in an unrelated case.5

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

Superior Court is AFFIRMED.

BY THE COURT:

/s/ Gary F. Traynor Justice

3 Weston v. State, 832 A.2d 742, 746 (Del. 2003). 4 Martin v. State, 2016 WL 552686, at *2 (Del. Feb. 10, 2016). 5 Tricoche v. State, 525 A.2d 151, 154 (Del. 1987).