Zera v. State

• Court: Supreme Court of Delaware
• Decided: September 25, 2018
• Docket: 293, 2018
• Status: Published

Opinion

IN THE SUPREME COURT OF THE STATE OF DELAWARE

KENNETH ZERA, § § Defendant Below, § No. 293, 2018 Appellant, § § Court Below—Superior Court v. § of the State of Delaware § STATE OF DELAWARE, § Cr. ID No. 1106028037 (K) § Plaintiff Below, § Appellee. §

Submitted: August 22, 2018 Decided: September 25, 2018

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

ORDER

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

affirm, and the record below, the Court concludes that:

(1) The appellant, Kenneth Zera, filed this appeal from the Superior

Court’s May 11, 2018 order sentencing him for a violation of probation (“VOP”).

The State of Delaware has moved to affirm the Superior Court’s judgment on the

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

without merit. We agree and affirm.

(2) The record reflects that, on August 23, 2011, Zera pled guilty to Sexual

Exploitation of a Child in exchange for the State dismissing multiple counts of

Dealing in Child Pornography. The Superior Court sentenced Zera, effective June 30, 2011, to fifteen years of Level V incarceration suspended after two years for

decreasing levels of supervision. The sentencing order required Zera to engage in

sexual offender treatment and prohibited him from accessing the internet or

possessing a computer with internet service.

(3) On May 23, 2014, an administrative warrant was filed for Zera’s VOP.

After a VOP hearing on June 13, 2014, the Superior Court found that Zera had

violated his probation and sentenced him, effective June 2, 2014, to thirteen years of

Level V incarceration, suspended after successful completion of the Level V

Transitions Sex Offender Program for decreasing levels of supervision. On February

28, 2017, another administrative warrant was filed for Zera’s VOP. After a VOP

hearing on March 13, 2017, the Superior Court found that Zera had violated his

probation and sentenced him, effective February 23, 2017, to ten years and seven

months of Level V incarceration suspended for six months of Level IV work release,

followed by one year of Level III probation.

(4) On April 23, 2018, another administrative warrant was filed for Zera’s

VOP. The VOP report alleged that Zera had failed a polygraph examination

regarding his internet use and sexual contact with a minor, possessed a cell phone

with internet access, continued to possess a cell phone with internet access even after

his probation officer directed him to get a new cell phone without internet access,

and admitted to online gaming at least once a month. After a VOP hearing on May

2 11, 2018, the Superior Court found that Zera had violated his probation. The

Superior Court sentenced Zera, effective April 19, 2018, to ten years and six months

of Level V incarceration, suspended after successful completion of the Life Skills

Program for two years of Level III probation and participation in the Level III

Transitions Sex Offender Program. This appeal followed.

(5) In his opening brief, Zera does not dispute that he violated his

probation, but argues that his sentence is excessive because he will not be able to

start the Life Skills Program until June 2019. Once Zera committed a VOP, the

Superior Court could impose any period of incarceration up to and including the

balance of the Level V time remaining on his sentence.1 The Level V sentence

imposed by the Superior Court after Zera’s VOP did not exceed the Level V time

previously suspended and was within statutory limits.

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/ Karen L. Valihura Justice

1 11 Del. C. § 4334(c); Pavulak v. State, 880 A.2d 1044, 1046 (Del. 2005). 3