Shaw v. State

• Court: Supreme Court of Delaware
• Decided: December 19, 2014
• Docket: 484, 2014
• Status: Published

Opinion

IN THE SUPREME COURT OF THE STATE OF DELAWARE

TITUS SHAW, § § No. 484, 2014 Defendant Below, § Appellant, § Court Below–Superior Court of § the State of Delaware in and for v. § New Castle County § STATE OF DELAWARE, § Cr. ID No. 0806012567 § Plaintiff Below, § Appellee. §

Submitted: October 29, 2014 Decided: December 19, 2014

Before STRINE, Chief Justice, RIDGELY, and VALIHURA, Justices.

ORDER

This 19th day of December 2014, upon consideration of the appellant’s

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

that:

(1) On January 5, 2009, the appellant, Titus Shaw, pled guilty to

Robbery in the Second Degree and Possession of a Firearm During the

Commission of a Felony. The Superior Court sentenced Shaw to three years

mandatory at Level V for the weapon offense and to five years at Level V

for robbery. The court suspended the robbery sentence for three years of

Level III probation. (2) On September 24, 2014, Shaw was found guilty of his sixth

violation of probation (“VOP”) and was resentenced to three years and four

months at Level V suspended for six months at the Level IV VOP Center.

Shaw challenges the sentence on appeal, claiming that the Superior Court

was not authorized to sentence him to any time at Level V because, by

September 24, 2014, the date he was sentenced, he had completed all of the

Level V time imposed in the original sentence in 2009.

(3) This Court’s appellate review of a sentence generally is limited

to whether the sentence exceeds the statutory limits.1 “[O]nce a defendant

violates the terms of his probation, the Superior Court has the authority to

require a defendant to serve the sentence imposed, or any lesser sentence.”2

A VOP sentence must account for all time previously served at Level V or at

a Level IV VOP Center.3 Also, a subsequent VOP sentence cannot exceed

the term that a prior VOP sentence left suspended.4

(4) We have reviewed the record and carefully considered the

parties’ submissions, including the five-page “Delaware Department of

Correction Level V Served Report” attached to the motion to affirm filed by

1 Mayes v. State, 604 A.2d 839, 842 (Del. 1992). 2 State v. Sloman, 886 A.2d 1257, 1260 (Del. 2005) (citing 11 Del. C. § 4334(c)). 3 11 Del. C. § 3901(c); Gamble v. State, 728 A.2d 1171, 1171 (Del. 1999); Green v. State, 2010 WL 2278251, at *2 (Del. June 7, 2010). 4 Pavulak v. State, 880 A.2d 1044, 1045-46 (Del. 2005).

2 the appellee, State of Delaware. It appears that, by September 16, 2014, the

effective date of the September 24, 2014 sentence, Shaw had completed the

original mandatory three-year Level V sentence for the weapon offense and

had served just short of one year and six months of the original five-year

Level V sentence for robbery. Consequently, when sentencing Shaw on

September 24, 2014 for the sixth VOP, the Superior Court was authorized to

impose three years and four months at Level V, the balance of the five-year

robbery sentence. Three years and four months at Level V did not exceed

the Level V term that was imposed and suspended on August 20, 2014 on

Shaw’s fifth VOP.5

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

GRANTED. The judgment of the Superior Court is AFFIRMED.

BY THE COURT:

/s/ Karen L. Valihura Justice

5 On the fifth VOP, Shaw was resentenced, for robbery, to three years and four months at Level V suspended for six months at Level IV work release. 3