Potts v. State

• Court: Supreme Court of Delaware
• Decided: June 26, 2018
• Docket: 111, 2018
• Status: Published

Opinion

IN THE SUPREME COURT OF THE STATE OF DELAWARE

EDWARD J. POTTS, § § Defendant Below, § No. 111, 2018 Appellant, § § Court Below—Superior Court v. § of the State of Delaware § STATE OF DELAWARE, § Cr. ID No. 1512008354 (K) § Plaintiff Below, § Appellee. §

Submitted: May 4, 2018 Decided: June 26, 2018

Before VAUGHN, SEITZ, and TRAYNOR, Justices.

ORDER

This 26th day of June 2018, upon consideration of the appellant’s opening

brief, the appellee’s motion to affirm, and the record below, it appears to the Court

that:

(1) The appellant, Edward J. Potts, filed this appeal from the Superior

Court’s February 12, 2018 order sentencing him for a violation of probation

(“VOP”). The State of Delaware has moved to affirm the Superior Court’s judgment

on the ground that it is manifest on the face of Potts’ opening brief that the appeal is

without merit. We agree and affirm.

(2) The record reflects that, on August 1, 2016, Potts pled guilty to his fifth

Driving Under the Influence offense. The Superior Court sentenced Potts to five years of Level V incarceration, suspended after eighteen months for one year of

Level III probation. Sentencing conditions included Potts’ maintaining sobriety for

at least ninety consecutive days, completing a substance abuse program, and

participating in periodic, random breath and urine analysis throughout his probation.

(3) On January 18, 2018, an administrative warrant was filed. The warrant

alleged that Potts had violated his probation by twice testing positive for cocaine and

once testing positive for alcohol and cocaine. The warrant also alleged that Potts

admitted to drinking beer in December 2017. On February 12, 2018, the Superior

Court found Potts had violated his probation. The Superior Court sentenced Potts to

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

IV Crest, suspended upon successful completion for one year of Level III Crest

Aftercare. This appeal followed.

(4) In his opening brief on appeal, Potts argues that his probation officer

did not tell him that two of his urine tests were positive. Potts also argues that he

should have been charged with a violation before his conditional release expired

because he could have completed his conditional release time at Level V without

having to complete Level IV Crest. Potts’ claims are without merit.

(5) Potts admits that he consumed alcohol and drugs in violation of the

terms of his probation. As to his conditional release claim, conditional release and

2 probation are served concurrently.1 “When adjudicating an alleged VOP, it makes

no difference if an offender was on conditional release at the time of the alleged

violation of supervision.”2 Once Potts 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 Potts’ sentence.3 The sentence imposed by the Superior Court

after Potts’ VOP did not exceed the Level V time previously suspended and was

within statutory limits.

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/ Collins J. Seitz, Jr. Justice

1 11 Del. C. § 4383(c). 2 Oliver v. State, 2015 WL 179390, at *1 (Del. Jan. 14, 2015) (citing Cannon v. State, 2012 WL 1970102 (Del. June 1, 2012)). 3 11 Del. C. § 4334(c); Pavulak v. State, 880 A.2d 1044, 1046 (Del. 2005). 3