Copes v. State

• Court: Supreme Court of Delaware
• Decided: December 21, 2018
• Docket: 295, 2018
• Status: Published

Opinion

IN THE SUPREME COURT OF THE STATE OF DELAWARE

TERRY COPES, § § No. 295, 2018 Defendant Below, § Appellant, § Court Below: Superior Court § of the State of Delaware v. § § Cr. ID Nos. 1602004997 (S) STATE OF DELAWARE, § 1605019609 (S) § Plaintiff Below, § Appellee. §

Submitted: October 4, 2018 Decided: December 21, 2018

Before VAUGHN, SEITZ, and TRAYNOR, Justices.

ORDER

(1) Terry Copes filed this appeal from a sentence imposed on May 25, 2018

for his third violation of probation. The State has moved to affirm the Superior

Court’s judgment on the ground that it is manifest on the face of Copes’ opening

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

(2) On June 22, 2016, following Copes’ guilty plea to assault second degree

and noncompliance with bond, the Superior Court sentenced Copes to ten years of

Level V incarceration suspended for two years of concurrent Level III probation.

Copes was found guilty of violation of probation (“VOP”) in August 2016 and

November 2017. For the first VOP, Copes was sentenced, on August 25, 2016, to

ten years of Level V incarceration suspended for one year of Level IV residential substance abuse treatment suspended, upon successful completion, for two years of

concurrent Level III aftercare. For the second VOP, Copes was sentenced, on

November 9, 2017, to nine years of Level V incarceration suspended for two years

of concurrent Level III probation.

(3) Copes was found guilty of his third VOP on May 25, 2018. At the VOP

hearing, Copes admitted that he had violated probation by missing three

appointments with his probation officer. Copes explained that he had attempted to

have his probation transferred to Maryland where he lives, but that Maryland refused

to accept it, and that he missed the probation appointments because his car was in

the shop and he had no transportation. Copes’ defense counsel asked the Superior

Court to consider, as a mitigating factor, that Copes was working “over 40 hours a

week” at a hatchery in Hurlock, Maryland.1 Also, Copes asked the Superior Court

to consider that his probation officer had told him that she would recommend a

sentence of time-served. The probation officer who appeared at the VOP hearing

asked the court to impose “some time at the VOP Center” and then to discharge

Copes as unimproved from the sentence.2 The Superior Court sentenced Copes to

nine years of Level V incarceration suspended after six months at the Level IV VOP

Center followed by Copes’ discharge from the sentence.

1 Hr’g Tr. at 2 (May 25, 2018). 2 Id. at 5. 2 (4) On appeal, Copes complains that he was sentenced unfairly to six

months at the VOP Center. Copes contends that the sentence was unduly harsh

considering the nature of his violation, and that the sentencing judge had imposed

more lenient sentences on probationers who had committed more serious violations.

Copes’ claims are without merit.

(5) When imposing a sentence for a VOP, the Superior Court is authorized

to re-impose any previously suspended prison term.3 A sentence within statutory

limits will not be disturbed on appeal unless the appellant can establish that the

sentencing judge relied on impermissible factors or exhibited a closed mind.4

(6) In this case, the sentencing judge listened to defense counsel’s

presentation and Copes’ remarks in mitigation of the admitted VOP and to the

probation officer’s recommendation of sentence. The transcript does not reflect that

the sentencing judge relied on impermissible factors or had a closed mind when

imposing the sentence. Moreover, the sentence was well within statutory limits.

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

Court is AFFIRMED.

BY THE COURT:

/s/ Collins J. Seitz, Jr. Justice

3 11 Del. C. § 4334(c) (Supp. 2018). 4 Weston v. State, 832 A.2d 742, 746 (Del. 2003). 3