Hall v. State

• Court: Supreme Court of Delaware
• Decided: July 26, 2023
• Docket: 91, 2023
• Status: Published

Opinion

IN THE SUPREME COURT OF THE STATE OF DELAWARE

CLIFTON D. HALL, § § No. 91, 2023 Defendant Below, § Appellant, § Court Below—Superior Court § of the State of Delaware v. § § Cr. ID No. 190808699 (K) STATE OF DELAWARE, § § Appellee. §

Submitted: May 25, 2023 Decided: July 26, 2023

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

ORDER

Upon consideration of the opening brief, motion to affirm, and record on

appeal, it appears to the Court that:

(1) The appellant, Clifton D. Hall, filed this appeal from a Superior Court

order sentencing 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 Hall’s opening brief that his appeal is without merit. We agree and affirm.

(2) On July 14, 2021, Hall pleaded guilty to fourth-offense driving under

the influence (“DUI”). On August 6, 2021, the Superior Court sentenced Hall to

five years of Level V incarceration, with credit for 168 days, suspended after the six-

month minimum under 21 Del. C. § 4177(d)(4) and (d)(9) for one year of Level III probation. The sentencing order also required Hall to be monitored by an alcohol

monitoring device for at least 90 consecutive days and to complete a drug and

alcohol abstinence program and a drug and alcohol treatment program. Hall did not

appeal.

(3) Hall began serving his probation on August 12, 2021. On November 3,

2021 the Department of Correction (“DOC”) filed an administrative warrant for

Hall’s VOP. The VOP report alleged that Hall had violated his probation by testing

positive for crack cocaine multiple times. On December 3, 2021, the Superior Court

found that Hall had violated his probation. The Superior Court sentenced Hall to

four years and six months of Level V incarceration, suspended for one year of Level

V incarceration to be suspended upon Hall’s completion of a program within DOC’s

discretion and followed by one year of Level III probation. In addition to reimposing

all previous terms and conditions, the sentencing order required TASC to evaluate

and monitor Hall during his probation.

(4) On June 29, 2022, DOC filed a VOP report alleging that Hall had failed

to report to his probation officer and pick up the alcohol monitoring device. A capias

issued for Hall’s arrest. The capias was returned in September. VOP hearings were

scheduled in October and December, but Hall did not appear.

(5) On February 4, 2023, Hall was arrested for theft. A VOP hearing was

scheduled for February 24, 2023. On February 14, 2023, DOC filed a supplemental

2 VOP report alleging that Hall had violated his probation by committing new crimes

while he had absconded from probation. After a hearing on February 24, 2023, the

Superior Court found that Hall had violated his probation and sentenced him to three

years and ten months of Level V incarceration, suspended after two years for six

months of Level IV work release. This appeal followed.

(6) In his opening brief, Hall does not dispute that he violated his probation.

Instead, he argues that: (i) his counsel was ineffective; (ii) the Superior Court erred

in sentencing him; and (iii) the Superior Court erred by allowing the disclosure of

Hall’s protected health information without his informed consent during the VOP

hearing. It is manifest on the face of Hall’s opening brief that his appeal is without

merit.

(7) As to Hall’s first argument, this Court generally does not consider

ineffective assistance of counsel claims for the first time on direct appeal and

declines to do so here.1

(8) Turning to Hall’s second argument, the Superior Court did not err in

sentencing Hall for his VOP. Once Hall committed a VOP, the Superior Court could

impose any period of incarceration up to and including the balance of the Level V

time remaining on his sentence.2 Hall’s VOP sentence—three years and ten months

1 Williams v. State, 2022 WL 351084, at *1 (Del. Feb. 4, 2022) (citing Desmond v. State, 654 A.2d 821, 829 (Del. 1994)). 2 11 Del. C. § 4334(c); Pavulak v. State, 880 A.2d 1044, 1046 (Del. 2005). 3 of Level V incarceration, suspended after two years for six months of Level IV work

release—did not exceed the Level V time remaining on his sentence. Nor did the

VOP sentence exceed the statutory time prescribed for fourth offense DUI as Hall

contends. When Hall committed this crime in 2019, Section 4177(d)(4) provided

for imprisonment “of not less than 2 years nor more than 5 years.” Section

4177(d)(4) also permitted, but did not require, a sentencing court to suspend up to

eighteen months of the minimum two-year sentence if the suspended sentence

included participation in drug and alcohol abstinence and treatment programs. The

Superior Court did not sentence Hall to more than the statutory maximum for his

VOP and was not required to suspend any portion of the VOP sentence.

(9) In conclusory fashion, Hall claims that the Superior Court judge

sentenced him with a closed mind, but the transcript of the VOP hearing does not

reflect any bias or appearance of a closed mind by the judge. Based on the evidence

presented, the Superior Court judge could reasonably conclude that Hall’s

absconding from probation, commission of a new crime, and failure to report to

TASC merited the VOP sentence imposed.

(10) Finally, Hall argues that the Superior Court erred by allowing a TASC

witness to disclose his protected health information without his informed consent

during the VOP hearing. As the State points out, Hall raised his health issues and

related hospital admissions as the primary reason he failed to appear for previous

4 VOP hearings. The TASC witness, unprompted, simply advised the Superior Court

of the treatment that TASC had been able to confirm for substance abuse and mental

health issues Hall reported to be suffering. Hall did not object the TASC witness’s

statement and has not identified any basis for reversal of his VOP sentence.

NOW, THEREFORE, IT IS ORDERED that the State’s motion to affirm is

GRANTED and the judgment of the Superior Court is AFFIRMED.

BY THE COURT:

/s/Karen L. Valihura Justice