Gray v. State

• Court: Supreme Court of Delaware
• Decided: May 12, 2017
• Docket: 44, 2017
• Status: Published

Opinion

IN THE SUPREME COURT OF THE STATE OF DELAWARE

ERIC A. GRAY, § § Defendant Below- § No. 44, 2017 Appellant, § § v. § Court Below—Superior Court § of the State of Delaware STATE OF DELAWARE, § § Cr. ID 1506002258 Plaintiff Below- § Appellee. §

Submitted: March 17, 2017 Decided: May 12, 2017

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

ORDER

This 12th day of May 2017, 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, Eric Gray, filed this appeal from the Superior Court’s

December 30, 2016 order sentencing him for a 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 Gray’s opening brief that his appeal is without merit. We

agree and affirm.

(2) The record reflects that Gray pled guilty on July 1, 2015 to one count

of Drug Dealing with an aggravating factor under 16 Del C. § 4753(2). The Superior Court sentenced him to fifteen years at Level V incarceration, to be

suspended after eighteen months for six months at Level IV work release and one

year at Level III probation. The sentencing order provided that Gray was to be

evaluated for substance abuse and ordered him to follow all recommendations for

counseling, testing, and treatment at all custodial levels.

(3) While serving the Level IV portion of his sentence at the Morris

Community Corrections Center, Gray was charged with a violation of probation

when he was found in possession of contraband (cigarettes and K-2, a form of

synthetic marijuana) on December 13, 2016. The violation report included a

history of Gray’s supervision at Level IV and set forth five previous program

violations, including a February 2016 violation for possession of cigarettes and K-

2. The violation report also recounted an incident in May 2016 when Gray was

admitted to the intensive care unit at Kent General Hospital, although Gray was not

charged with a program violation for consuming a controlled or dangerous

substance.

(4) The Superior Court held a contested VOP hearing on December 30,

2016. Gray was represented by counsel. After the hearing, the Superior Court

found Gray in violation and sentenced him to thirteen years and six months at

Level V incarceration, to be suspended upon successful completion of the Key

Program for decreasing levels of supervision. Gray appeals his VOP sentence.

2 (5) In his opening brief on appeal, Gray argues that the evidence was

insufficient to prove that he violated probation and that the Superior Court abused

its discretion in sentencing him. Specifically, Gray asserts that the probation

officer’s statements were insufficient proof that he possessed drugs and that the

Superior Court abused its discretion in finding that he had violated probation

without any positive test results proving that Gray had possessed or used drugs.

Gray also asserts that his VOP counsel was ineffective for failing to challenge the

sufficiency of the evidence. Finally, Gray contends that the Superior Court abused

its discretion by sentencing him without first ordering a case study under 11 Del.

C. § 4301 to determine if he needed drug treatment, by failing to follow the

sentencing guidelines, and by failing to impose a fixed period of probation or

suspension of sentence.

(6) At a VOP hearing, if a defendant denies violating his probation, the

State must present some competent evidence to reasonably satisfy the judge that

the defendant’s conduct has not been as good as required by the conditions of his

probation.1 We review the trial court’s finding of a VOP for abuse of discretion.2

As the appealing party, the appellant is required to provide this Court with a copy

of the transcript necessary to review any claims raised on appeal.3 Gray failed to

1 Jenkins v. State, 8 A.3d 1147, 1152-53 (Del. 2010). 2 Cruz v. State, 990 A.2d 409, 412 (Del. 2010). 3 Tricoche v. State, 525 A.2d 151, 154 (Del. 1987).

3 request a transcript of the VOP hearing for this appeal. To the extent Gray

challenges the sufficiency of the evidence presented at the VOP hearing, we are

unable to review his claim without a transcript of the hearing. Thus, the record on

appeal provides no basis for the Court to conclude that the Superior Court abused

its discretion in finding that Gray committed a VOP. Moreover, with respect to his

claim that counsel was ineffective for failing to challenge the sufficiency of the

evidence at the VOP hearing, this Court will not consider such a claim for the first

time on direct review even if Gray had provided the necessary transcript.4

(7) Gray’s remaining claim is that the Superior Court erred by sentencing

him without first ordering a case study to determine his treatment needs, by failing

to sentence him in accordance with the SENTAC guidelines, and by failing to

impose a fixed period of probation or suspension of sentence. We find no merit to

Gray’s assertions.

(8) This Court’s review of a sentence generally is limited to determining

whether the sentence is within statutory limits.5 Once the State has proven by a

preponderance of evidence that a VOP has occurred, the Superior Court is

authorized to 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 In this case, the

4 Foster v. State, 2009 WL 1456992 (Del. May 26, 2009). 5 Mayes v. State, 604 A.2d 839, 842-43 (Del. 1992). 6 11 Del. C. § 4334(c) (2007).

4 Superior Court reimposed the balance of the Level V time remaining on Gray’s

sentence, but suspended all of it upon his successful completion of the Level V

Key program. This sentence was well within statutory limits, was not excessive,

and in no way reflects a closed mind by the sentencing judge.7

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

Court is AFFIRMED.

BY THE COURT:

/s/ Collins J. Seitz, Jr. Justice

7 See Weston v. State, 832 A.2d 742, 746 (Del. 2003).