Smith v. State

• Court: Supreme Court of Delaware
• Decided: July 12, 2022
• Docket: 76, 2022
• Status: Published

Opinion

IN THE SUPREME COURT OF THE STATE OF DELAWARE

FREDERICK W. SMITH, JR., § § No. 76, 2022 Defendant Below, § Appellant, § Court Below—Superior Court § of the State of Delaware v. § § Crim. ID No. 93007368DI (N) STATE OF DELAWARE, § § Appellee. §

Submitted: May 23, 2022 Decided: July 12, 2022

Before SEITZ, Chief Justice; TRAYNOR and MONTGOMERY-REEVES, Justices.

ORDER

(1) The appellant, Frederick W. Smith, Jr., filed this appeal from the

Superior Court’s order, dated February 23, 2022, denying his motion for correction

of an illegal sentence. The State has moved to affirm the judgment below on the

ground that it is manifest on the face of Smith’s opening brief that his appeal is

without merit. We agree and affirm.

(2) In 1993, a Superior Court jury convicted Smith of two counts of second-

degree unlawful sexual intercourse, third-degree unlawful sexual penetration, and

third-degree assault. In January 1994, the Superior Court sentenced him to a total of thirty-six years in prison, suspended after thirty-two years for probation. This

Court affirmed on direct appeal.1

(3) Shortly after his release from prison on probation and conditional

release, Smith was charged with a violation of probation (“VOP”) and conditional

release. At a hearing on March 17, 2021, the Superior Court found that Smith had

violated his probation and conditional release and deferred sentencing, ordering that

Smith first undergo a presentencing psychiatric evaluation. On August 31, 2021, the

Superior Court discharged Smith’s conditional release and sentenced him on the

VOP to four years of imprisonment, suspended for two years of Level III probation

with GPS monitoring. The sentencing order also provided that Smith was required

to complete sex offender treatment while on Level III probation and expressed “zero

tolerance” for failure to do so.

(4) On October 7, 2021, a probation officer filed an administrative warrant

alleging that Smith was in violation of probation because, among other alleged

violations, he refused to sign documents allowing a counselor to begin the

assessment for sex offender treatment. At a hearing on November 3, 2021, the

Superior Court found that Smith had violated his probation. The court sentenced

him to four years of imprisonment, suspended after eleven months and successful

1 Smith v. State, 669 A.2d 1 (Del. 1995). 2 completion of the Transitions Sex Offender program for six months of Level III

probation.

(5) Smith did not appeal from the VOP adjudication and sentence. On

January 13, 2022, he filed a motion for correction of illegal sentence, in which he

asserted that the VOP sentence is illegal because the probation officer made false

allegations regarding his refusal to sign the sex offender assessment paperwork and

the other alleged violations. He filed an amendment to the motion on February 4,

2022, in which he contended that the VOP sentence is illegal because the court could

impose no more than thirty days of incarceration for Smith’s “alleged petty violation

of probation.” The Superior Court denied the motion, and Smith has appealed to

this Court.

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

of discretion.2 To the extent the claim involves a question of law, we review the

claim de novo.3 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 internally contradictory, omits a term required to be imposed by statute, is

uncertain as to its substance, or is a sentence that the judgment of conviction did not

authorize.4

2 Fountain v. State, 2014 WL 4102069, at *1 (Del. Aug. 19, 2014). 3 Id. 4 Brittingham v. State, 705 A.2d 577, 578 (Del. 1998). 3 (7) We find no error in the Superior Court’s denial of Smith’s motion.

“The narrow function of Rule 35(a) is to ‘permit correction of an illegal sentence,

not to re-examine errors occurring at the trial or other proceedings prior to the

imposition of sentence.’”5 Smith’s attempt to use a motion for correction of sentence

to challenge the court’s determination that he violated his probation is outside the

limited scope of Rule 35(a).6

(8) The VOP sentence also does not exceed statutory limits or the Level V

time that was previously imposed. When sentencing a defendant for a VOP, 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.7 Contrary to Smith’s

assertion, the Superior Court had previously discharged Smith’s conditional release,

but not his probation or the balance of his Level V time.8

5 Warnick v. State, 2017 WL 1056130, at *1 (Del. Mar. 20, 2017) (quoting Brittingham, 705 A.2d at 578). 6 See Pipkin v. State, 2004 WL 2419087, at *1 (Del. Oct. 26, 2004) (“Rather than filing a direct appeal to this Court from the finding of a VOP, Pipkin instead chose to file a motion for sentence modification pursuant to Rule 35. However, Pipkin may not use the instant appeal from the Superior Court’s denial of his Rule 35 motion to collaterally attack the merits of his VOP conviction.”); Fisher v. State, 2003 WL 1443050, at *2 (Del. Mar. 19, 2003) (“Fisher may not use this appeal, from the denial of a reduction of sentence, to collaterally attack the merit of his VOP conviction.”). 7 11 Del. C. § 4334(c). 8 State’s Mot. To Affirm Ex. C. 4 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/ Tamika R. Montgomery-Reeves Justice