Toomey v. State

• Court: Supreme Court of Delaware
• Decided: December 13, 2018
• Docket: 460, 2018
• Status: Published

Opinion

IN THE SUPREME COURT OF THE STATE OF DELAWARE

MISTY TOOMEY, § § No. 460, 2018 Defendant Below, § Appellant, § Court Below: Superior Court § of the State of Delaware v. § § Cr. ID No. 1610006528 (S) STATE OF DELAWARE, § § Plaintiff Below, § Appellee. §

Submitted: September 27, 2018 Decided: December 13, 2018

Before VALIHURA, VAUGHN, and SEITZ, Justices.

ORDER

(1) The appellant, Misty Toomey, filed this appeal from the Superior

Court’s order dated August 14, 2018, denying her request for credit for time that she

served before her sentencing on June 5, 2018. The State of Delaware has moved to

affirm the Superior Court’s judgment on the ground that it is manifest on the face of

Toomey’s opening brief that the appeal is without merit. We agree and affirm.

(2) On August 9, 2017, following her guilty plea to two drug offenses and

one count of conspiracy, Toomey was sentenced to a total of three years of Level V

incarceration—one year for each guilty plea conviction—suspended immediately

for Level III probation. Since then, Toomey has been found guilty of violation of

probation (“VOP”) three times. (3) When sentencing Toomey for her second VOP on April 6, 2018, the

Superior Court imposed a total of two years and ten months of Level V

incarceration—ten months for the first drug offense, one year for the second drug

offense, and one year for conspiracy. The court suspended the Level V incarceration

for a total of one year and nine months of Level IV Residential Substance Abuse

Treatment—nine months for the first drug offense, one year for the second drug

offense—followed, upon successful completion, by one year of Level III probation

for conspiracy.

(4) This appeal concerns the sentence imposed for Toomey’s third VOP

after a hearing on June 5, 2018. When imposing the sentence, the Superior Court

discharged Toomey as unimproved from the two drug offense sentences. For

conspiracy, the court imposed one year of Level V incarceration suspended after

nine months served under 11 Del. C. § 4204(k), with no probation to follow.1

(5) On August 10, 2018, Toomey submitted a letter asking the Superior

Court to apply thirty-eight days of credit to her June 5, 2018 VOP sentence for the

period of time she was held without bail before the June 5 VOP hearing. By order

dated August 14, 2018, the Superior Court denied Toomey’s request after

1 11 Del. C. § 4204(k)(1) (“[T]he court may direct as a condition to a sentence of imprisonment to be served at Level V . . . that all or a specified portion of said sentence shall be served without benefit of any form of early release, good time, furlough, work release, supervised custody or any other form or reduction or diminution of sentence.”).

2 determining that the court took into account all of the time Toomey previously

served when sentencing her on June 5, 2018. In her appeal from the August 14 order,

Toomey argues that the Superior Court erred when denying her request for time-

served credit.

(6) Toomey was entitled to time-served credit for the days she was held

without bail before her hearing and sentencing on June 5, 2018 on her third VOP.2

Toomey received that credit, however, on June 5, 2018, when the Superior Court

discharged her as unimproved from the unexpired drug offense sentences imposed

on April 6, 2018 for her second VOP.

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

GRANTED. The judgment of the Superior Court is AFFIRMED.

BY THE COURT:

/s/ James T. Vaughn, Jr. Justice

2 Richardson v. State, 2002 WL 972233 (Del. May 9, 2002) (citing 11 Del. C. § 3901(b)).