Kossman v. State

• Court: Supreme Court of Delaware
• Decided: May 31, 2023
• Docket: 95, 2023
• Status: Published

Opinion

IN THE SUPREME COURT OF THE STATE OF DELAWARE

ADAM KOSSMAN, § § No. 95, 2023 Defendant Below, § Appellant, § Court Below—Superior Court § of the State of Delaware v. § § Cr. ID No. 2207003267 (K) STATE OF DELAWARE, § § Appellee. §

Submitted: May 4, 2023 Decided: May 31, 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, Adam Kossman, 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 Kossman’s opening brief that his appeal is without merit. We agree and

affirm.

(2) In September 2022, a grand jury charged Kossman with drug

possession and drug dealing. On October 25, 2022, Kossman pleaded guilty to drug

possession. The Superior Court sentenced Kossman, effective July 7, 2022, to two years of Level V incarceration, suspended immediately for one year of Level III

probation that included evaluation and monitoring by TASC. Kossman did not

appeal.

(3) On January 11, 2023, the Department of Correction (“DOC”) requested

issuance of a capias for Kossman’s VOP. The probation officer alleged that

Kossman had failed to report to his probation officer since December 13, 2022 and

all efforts to reach him had been unsuccessful. The capias was returned on February

9, 2023. On February 16, 2023, DOC filed a supplemental VOP report alleging that

Kossman had been arrested on new criminal charges, including resisting arrest and

possession of drug paraphernalia, in violation of his probation. The probation officer

recommended that the Superior Court sentence Kossman to two years of Level V

incarceration, suspended after 90 days of Level V incarceration, followed by six

months of Level IV DOC discretion and one year of Level III probation.

(4) After a hearing on February 24, 2023, the Superior Court found that

Kossman had violated his probation. The Superior Court sentenced Kossman to one

year and eight months of Level V incarceration, suspended after six months of Level

V incarceration to be served without the benefit of any form of early release under

11 Del. C. § 4204(k), followed by one year of Level III probation. This appeal

followed.

2 (5) In his opening brief, Kossman does not dispute that he violated his

probation, but contends that the Superior Court should not have sentenced him to a

longer sentence than what the probation officer recommended for his “technical”

VOP.1

(6) This Court’s appellate review of a sentence is extremely limited and

generally ends upon a determination that the sentence is within statutory limits.2

When the sentence falls within the statutory limits, “we consider only whether it is

based on factual predicates which are false, impermissible, or lack minimal

reliability, judicial vindictiveness or bias, or a closed mind.”3

(7) Once Kossman 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 Kossman’s sentence.4 Kossman’s VOP sentence—one year and eight months of

Level V incarceration, suspended after six months of Level V incarceration to be

served under 11 Del. C. § 4204(k) for one year of Level III probation—does not

exceed the Level V time remaining on his original sentence. Kossman conclusorily

alleges that the Superior Court judge must have been biased to sentence him to a

longer sentence than what the probation officer recommended, but the Superior

1 Opening Brief at 1. 2 Kurzmann v. State, 903 A.2d 702, 714 (Del. 2006). 3 Id. 4 11 Del. C. § 4334(c); Pavulak v. State, 880 A.2d 1044, 1046 (Del. 2005). 3 Court was not bound by the probation officer’s recommendation.5 The Superior

Court could reasonably conclude that Kossman’s probation violations, which

included failure to report to his probation officer and his arrest for new charges, were

not “technical” as Kossman contends and merited a longer Level V sentence than

the probation officer’s recommended sentence.

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

GRANTED and the judgment of the Superior Court is AFFIRMED.

BY THE COURT:

/s/Karen L. Valihura Justice

5 See, e.g., Imle v. State, 2020 WL 3397465, at *1 (Del. June 18, 2020) (recognizing that the Superior Court is not bound by the probation officer’s sentencing recommendation). 4