Ritchie v. State

• Court: Supreme Court of Delaware
• Decided: December 29, 2022
• Docket: 249, 2022
• Status: Published

Opinion

IN THE SUPREME COURT OF THE STATE OF DELAWARE

DUSTIN RITCHIE, § § No. 249, 2022 Defendant Below, § Appellant, § § Court Below–Superior Court v. § of the State of Delaware § STATE OF DELAWARE, § § Cr. ID No. 1812011097 (N) Appellee. §

Submitted: October 17, 2022 Decided: December 29, 2022

Before VALIHURA, VAUGHN, and TRAYNOR, Justices.

ORDER

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

affirm, and the record below, it appears to the Court that:

(1) The appellant, Dustin Ritchie, filed this appeal from the Superior

Court’s violation-of-probation sentencing order. The State has moved to affirm the

judgment below on the ground that it is manifest on the face of Ritchie’s opening

brief that his appeal is without merit. We agree and affirm, but we remand the matter

to the Superior Court to issue a modified sentencing order because, as the State

laudably concedes, it appears that the Superior Court did not properly credit Ritchie

with the time he previously served at Level V incarceration or the Level IV violation-

of-probation center. (2) The record reflects that Ritchie pleaded guilty on August 19, 2019, to

third-degree conspiracy as a lesser-included offense to second-degree conspiracy.

The Superior Court immediately sentenced him in accordance with the plea

agreement to one year of incarceration, suspended for one year of Level II probation.

Ritchie did not appeal.

(3) In November 2019, Ritchie was charged with violating the terms of his

probation by, among other things, testing positive for illegal substances and failing

to report to his probation officer. In supplemental VOP reports, Ritchie was also

charged with violating the terms of his probation by committing new criminal

offenses. On March 29, 2022, the Superior Court found Ritchie in violation of the

terms of his probation and sentenced him to one year of incarceration, suspended

after thirty days for one year of Level III probation.

(4) In May 2022, Ritchie was charged with violating the terms of his

probation by failing to report his probation officer and failing to complete a court-

ordered substance-abuse evaluation. On June 28, 2022, the Superior Court found

Ritchie in violation of the terms of his probation and sentenced him to one year of

incarceration, suspended after the successful completion of a Level V substance-

abuse-treatment program with the balance of the sentence to be served on Level III

probation. This appeal followed.

(5) In his opening brief on appeal, Ritchie does not dispute that he violated

2 the terms of his probation but asks the Court to reduce his sentence to six months of

incarceration with no probation to follow. We find no merit to Ritchie’s argument.

(6) Probation is an “act of grace,” and the Superior Court has broad

discretion when deciding whether to revoke a defendant’s probation.1 Once the

Superior Court has found that a defendant has violated the terms of his probation, it

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

time remaining on the original sentence.2 If the sentence falls within statutory limits,

the sentence will not be disturbed on appeal unless the defendant can establish that

the sentencing judge relied on impermissible factors or exhibited a closed mind when

imposing the sentence.3 Ritchie’s sentence falls within statutory limits and Ritchie

does not suggest (and the record does not reflect) that the sentencing judge relied on

impermissible factors or exhibited a closed mind when he imposed Ritchie’s

sentence. Nevertheless, it appears that the Superior Court did not properly credit

Ritchie with the time he previously served at Level V incarceration or at the Level

IV VOP center on his third-degree conspiracy conviction. Accordingly, this matter

must be remanded to the Superior Court for the issuance of a new sentencing order

that gives Ritchie credit for any time he previously served at Level V incarceration

or the Level IV VOP center on his current sentence.

1 Kurzmann v. State, 903 A.2d 702, 716 (Del. 2006). 2 11 Del. C. § 4334(c); Pavulak v. State, 880 A.2d 1044, 1046 (Del. 2005). 3 Weston v. State, 832 A.2d 742, 746 (Del. 2003). 3 NOW, THEREFORE, IT IS HEREBY ORDERED that the motion to affirm

is GRANTED and the judgment of the Superior Court is AFFIRMED. The matter

is hereby REMANDED to the Superior Court with directions to enter a modified

sentencing order in accordance with this Order.

BY THE COURT:

/s/ James T. Vaughn, Jr. Justice