Guilfoil v. State

Opinion

IN THE SUPREME COURT OF THE STATE OF DELAWARE

DALE GUILFOIL, § § No. 237, 2020 Defendant Below, § Appellant, § Court Below—Superior Court § of the State of Delaware v. § § Cr. ID No. 1407004778 (K) STATE OF DELAWARE, § § Plaintiff Below, § Appellee. §

Submitted: September 28, 2020 Decided: November 4, 2020

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

ORDER

Upon consideration of the parties’ briefs and the Superior Court record, it

appears to the Court that:

(1) The appellant, Dale Guilfoil, filed this appeal from a Superior Court

order resentencing him for a violation of probation (“VOP”). The State of Delaware

has filed a motion to affirm the judgment below on the ground that it is manifest on

the face of Guilfoil’s opening brief that his appeal is without merit. We agree and

affirm.

(2) In 2015, a Superior Court jury convicted Guilfoil of Driving a Vehicle

While Under the Influence of Alcohol and/or Drugs in violation of 21 Del. C. § 4177.1 The Superior Court sentenced Guilfoil to fifteen years of incarceration,

suspended after six years for one year of probation. This Court affirmed on direct

appeal.2

(3) In June 2019, Guilfoil was charged with violation of his probation and

conditional release.3 At a hearing on June 28, 2019, the Superior Court found

Guilfoil violated his probation and sentenced him to eight years and eleven months

of Level V incarceration, suspended for one year of the Level IV Crest program,

suspended after successful completion for one year of Crest Aftercare. The court

also revoked Guilfoil’s conditional release and ordered that he would lose previously

earned good time and would serve the balance of the sentence from which he was

conditionally released. The “notes” section of the sentencing order court provided

that Guilfoil was required to complete the Key program while at Level V, but did

not specify whether that requirement applied to the conditional release revocation or

the VOP.

(4) On July 22, 2019, the Department of Correction (“DOC”) sent a letter

to the Superior Court advising that there was insufficient time in Guilfoil’s sentence

to allow completion of the Key program while he was at Level V. DOC requested

1 The sentencing order identified this conviction as Guilfoil’s seventh DUI offense. 2 Guilfoil v. State, 2016 WL 943760 (Del. Mar. 11, 2016). 3 See 21 Del. C. § 4177(d)(8)-(9) (permitting suspension of a portion of a minimum repeat DUI offender sentence upon the condition that the defendant participates in certain substance abuse programs). 2 that the court accept completion of the Reflections program instead of Key. The

Superior Court denied the request and on August 5, 2019 issued a corrected VOP

sentence order. Under the August 5, 2019 order, Guilfoil was required to remain at

Level V until he successfully completed the Key program.

(5) Guilfoil filed an untimely notice of appeal from the June 28, 2019

sentencing order on August 5, 2019. He filed an amended notice of appeal from the

August 5, 2019 order on August 22, 2019. On appeal, Guilfoil challenged the July

22, 2019 VOP finding and the August 5, 2019 corrected sentencing order. The State

argued that the Superior Court did not err in finding Guilfoil had violated his

probation, but conceded that the Superior Court erroneously entered the August 5,

2019 order without holding a hearing at which Guilfoil had the opportunity to be

present with counsel.

(6) This Court held that Guilfoil’s failure to file a timely notice of appeal

from the June 28, 2019 VOP proceedings precluded appellate review of his claims

challenging the VOP finding.4 The Court noted that the August 5, 2019 order

appeared to increase the Level V time that Guilfoil would be required to serve, and

Guilfoil was not present when the court imposed that sentence.5 Accordingly, the

4 See Guilfoil v. State, 2020 WL 3096746, at *2 (Del. June 10, 2020). 5 Id. 3 Court vacated the August 5, 2019 sentencing order and remanded the matter for

further proceedings in the Superior Court.6

(7) The Superior Court held a hearing on July 2, 2020. Guilfoil’s counsel,

a DOC counselor, and Guilfoil informed the court that he was close to completing

the Key program before he was removed in June for unspecified disciplinary

infractions. Guilfoil also told the court that he hoped to maintain his sobriety with

Vivitrol medication. The Superior Court modified Guilfoil’s VOP sentence to seven

years and ten months of Level V incarceration, suspended for one year of Level IV

Crest, suspended after successful completion for one year of Level III intensive

outpatient treatment. The sentence for the conditional release violation remained

unchanged, with a maximum release date of July 5, 2020. This appeal followed.

(8) In his opening brief, Guilfoil argues that he did not receive notice of the

July 2, 2020 hearing and that the Superior Court is punishing him for his alcoholism.

He also continues to challenge the June 28, 2019 VOP findings. These arguments

are without merit.

(9) The transcript of the July 2, 2020 hearing reflects that the Superior

Court wished to hold a hearing promptly in light of this Court’s June 10, 2020 order

and the expiration of Guilfoil’s conditional release sentence on July 5, 2020. The

transcript also reflects that Guilfoil spoke with his counsel before the hearing.

6 Id. 4 Guilfoil’s counsel informed the court that Guilfoil consented to proceeding by video

in light of the COVID-19 emergency. The Superior Court asked Guilfoil to confirm

that he wished to proceed by video that day, and Guilfoil affirmed that was the case.

Under these circumstances, Guilfoil waived any objections to the notice of the July

2, 2020 hearing. He has also failed to show that he suffered any prejudice from a

lack of notice.

(10) Contrary to Guilfoil’s contentions, the Superior Court is not punishing

him for his alcoholism. The Superior Court originally sentenced Guilfoil to fifteen

years of Level V incarceration, suspended after six years for his seventh DUI offense.

Once Guilfoil committed a VOP, the Superior Court could impose any period of

incarceration up to and including the balance of Level V time remaining on his

sentence.7 The July 2, 2020 sentence did not exceed the Level V time previously

suspended. The Superior Court could also impose alcohol treatment as a condition

of Guilfoil’s sentence.8 The Superior Court’s imposition of alcohol treatment was

reasonable in light of Guilfoil’s DUI conviction and self-admitted struggles to

remain sober while on probation. Finally, as this Court previously held, Guilfoil’s

failure to file a timely notice of appeal from the June 28, 2019 VOP proceedings

precludes appellate review of his challenges to the underlying VOP finding.9

7 11 Del. C. § 4334(c); Pavulak v. State, 880 A.2d 1044, 1046 (Del. 2005). 8 11 Del. C. § 4204(c)(8). 9 Guilfoil, 2020 WL 3096746, at *2. 5 NOW, THEREFORE, IT IS ORDERED that the State’s motion to affirm is

GRANTED.

BY THE COURT:

/s/ Karen L. Valihura Justice