Rembert v. State

• Court: Supreme Court of Delaware
• Decided: April 27, 2018
• Docket: 27, 2018
• Status: Published

Opinion

IN THE SUPREME COURT OF THE STATE OF DELAWARE

TYSHAUN REMBERT, § § Defendant Below- § No. 27, 2018 Appellant, § § v. § Court Below—Superior Court § of the State of Delaware STATE OF DELAWARE, § § Cr. ID 1402006833 Plaintiff Below- § Appellee. §

Submitted: February 21, 2018 Decided: April 27, 2018

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

ORDER

Upon consideration of the appellant’s opening brief, the State’s motion to

affirm, and the record below, the Court finds that:

(1) The defendant-appellant, Tyshaun Rembert, filed this appeal from a

Superior Court order dated December 19, 2017, 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 Rembert’s opening brief that his appeal

is without merit. We agree and affirm.

(2) The record reflects that Rembert pled guilty on April 8, 2014 to one

count of drug dealing. The Superior Court immediately sentenced him to five

years at Level V incarceration, to be suspended immediately for probation. On March 13, 2015, the Superior Court found that Rembert had violated the terms of

his probation and reimposed the same sentence. On March 4, 2016, the Superior

Court again found Rembert in violation of his probation. For his second VOP, the

Superior Court sentenced Rembert to five years at Level V incarceration (with

credit for seventeen days previously served), to be suspended immediately for five

months at the Level IV VOP Center, followed by one year at Level III probation.

(3) Rembert was arrested on new criminal charges, including drug

dealing, on November 22, 2016. On February 16, 2017, he pled guilty to drug

dealing and was immediately sentenced to eight years at Level V incarceration,

suspended for one year at Level IV Residential Substance Abuse Treatment, to be

suspended upon successful completion for eighteen months at Level III Aftercare.

The Superior Court also found Rembert guilty of his third VOP in his 2014 case

and sentenced him to four years at Level V (with credit for one day served), to be

suspended for eighteen months at Level III Aftercare.

(4) On November 4, 2017, Rembert was arrested and charged with

possession of a controlled substance. He pled guilty and was ordered to pay a fine.

Additionally, he was charged with his first VOP in his 2016 drug dealing case and

with his fourth VOP in his 2014 drug dealing case. On December 19, 2017, the

Superior Court sentenced Rembert as follows: (i) for drug dealing in his 2016 case,

to seven years at Level V incarceration (with credit for 50 days previously served),

2 suspended upon successful completion of the Key Program for eighteen months at

Level III probation; and (ii) for drug dealing in his 2014 case, to four years at

Level V (with credit for one day previously served), suspended for eighteen

months at Level III probation. This appeal followed.

(5) Rembert appears to argue in his opening brief that he was sentenced

on a charge for which he was never convicted. The record does not support

Rembert’s contention. To the extent that Rembert might be arguing that there was

no factual basis for charging him with violating probation, that argument is belied

by the record. Rembert pled guilty to committing a new criminal charge of drug

possession in November 2017. It was that new criminal charge that formed the

basis for the Superior Court’s later VOP findings and sentence.

(6) To the extent that Rembert is challenging the length of his VOP

sentences, we find no merit to that claim, either. In sentencing a defendant on a

VOP adjudication, 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 defendant’s original sentence.1 In this case, the Superior Court’s

December 2017 sentencing order did not impose more prison time than was

remaining to be served on either of his underlying sentences. Thus, we find no

error in the Superior Court’s sentencing order.

1 11 Del. C. § 4334(c) (2015).

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

Court is AFFIRMED.

BY THE COURT: /s/ Leo E. Strine, Jr. Chief Justice