Shaw v. State of Delaware

• Court: Supreme Court of Delaware
• Decided: September 23, 2021
• Docket: 156, 2021
• Status: Published

Opinion

IN THE SUPREME COURT OF THE STATE OF DELAWARE

GEORGE B. SHAW, § § No. 156, 2021 Defendant Below, § Appellant, § § v. § Court Below–Superior Court § of the State of Delaware STATE OF DELAWARE, § § Cr. ID No. 1111014713 (N) Plaintiff Below, § Appellee. §

Submitted: July 12, 2021 Decided: September 23, 2021

Before SEITZ, Chief Justice; VALIHURA and VAUGHN, Justices.

ORDER

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

to affirm, and the record on appeal, it appears to the Court that:

(1) The appellant, George Shaw, filed this appeal from the Superior Court’s

denial of his motion for correction of illegal sentence. The State has filed a motion

to affirm the judgment below on the ground that it is manifest on the face of Shaw’s

opening brief that his appeal is without merit. We agree and affirm.

(2) On September 5, 2012, Shaw pleaded guilty to one count of aggravated

intimidation and one count of stalking. Following a presentence investigation, the

Superior Court sentenced Shaw as follows: for aggravated intimidation, to eight

years of Level V incarceration, suspended after six years for decreasing levels of supervision; and for stalking, to three years of Level V incarceration, suspended after

two years for one year of Level III probation. Shaw did not appeal.

(3) On October 27, 2020, while Shaw was serving the Level IV portion of

his sentence, Shaw’s probation officer filed an administrative warrant with the

Superior Court. The warrant alleged that Shaw had violated the terms of his

probation because (i) he had broken the Plummer Center’s rules by, among other

things, engaging in disruptive and threatening behavior and (ii) he was facing new

charges for terroristic threatening. On December 8, 2020, the Superior Court found

Shaw in violation of the terms of his probation and sentenced him to an aggregate of

three years of Level V incarceration, suspended after one year for eighteen months

of Level III probation. Shaw did not appeal. Instead, Shaw filed a motion for the

correction of an illegal sentence under Superior Court Rule 35(a). The Superior

Court denied the motion, and this appeal followed.

(4) We review the denial of a motion for correction of sentence for abuse

of discretion.1 To the extent a claim involves a question of law, we review the claim

de novo.2 A sentence is illegal if it exceeds statutory limits, violates double jeopardy,

is ambiguous with respect to the time and manner in which it is to be served, is

1 Fountain v. State, 2014 WL 4102069, at *1 (Del. Aug. 19, 2014). 2 Id.

2 internally contradictory, omits a term required to be imposed by statute, is uncertain

to its substance, or is a sentence that the judgment of conviction did not authorize.3

(5) In his opening brief on appeal, Shaw argues that his sentence exceeds

statutory limits, his sentence is excessive, and the Superior Court sentenced him with

a “closed mind.” We find no merit to Shaw’s claims. When sentencing a defendant

for a violation of probation, the trial court may impose any period of incarceration

up to and including the balance of the Level V time remaining to be served on the

original sentence.4 Shaw was originally sentenced for aggravated intimidation to

eight years of Level V incarceration. Two years of this term was suspended. And

Shaw was originally sentenced for stalking to three years of Level V incarceration.

One year of this term was suspended. Thus, when Shaw was found in violation of

the terms of his probation, the Superior Court had the authority to impose a sentence

of up to three years of Level V incarceration. Accordingly, the Superior Court’s

sentence of three years of Level V incarceration, suspended after one year for

eighteen months of Level III probation, does not exceed statutory limits and is not

excessive. As for Shaw’s claim that the Superior Court sentenced him with a closed

mind, Shaw has presented no evidence that the court’s sentence is based on a

3 Brittingham v. State, 705 A.2d 577, 578 (Del. 1998). 4 Dickerson v. State, 2013 WL 1559650, at *1 (Del. Apr. 11, 2013).

3 “preconceived bias without consideration of the nature of the offense or the character

of the defendant.”5

NOW, THEREFORE, IT IS HEREBY 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 Cruz v. State, 990 A.2d 409, 416 (Del. 2010).