Allen v. State ( 2016 )

IN THE SUPREME COURT OF THE STATE OF DELAWARE
Plaintiff Below-
Appellee.
WALTER ALLEN, §
§ No. 447, 2015
Defendant Below- §
Appellant, §
§
v. § Court Below—Superior Court
{5 of the State of Delaware,
STATE OF DELAWARE, § Cr. ID 0304013214
§
§
§
Submitted: November 6, 2015
Decided: January 8, 2016
Before VALIHURA, VAUGHN, and SEITZ, Justices
O R D E R
This 8''1 day of January 2016, upon consideration of the parties’ briefs and
the record on appeal, it appears to the Court that:
(1) The appellant, Walter Allen, filed this appeal from a Superior Court
order, dated June 15, 2015, which modified his violation of probation (“VOP”)
sentence. After carefiil consideration of the parties’ contentions on appeal, we
conclude that the Court is without jurisdiction to consider Allen’s points
concerning the merits of the Superior Court’s VOP finding. Nonetheless, as the
State laudably concedes, the Superior Court’s modified VOP sentencing order
must be vacated and this matter remanded to the Superior Court for further
proceedings.
(2) The record reflects that Allen pled guilty in October 2005 to one count
each of Robbery in the First Degree and Possession of a Firearm During the
Commission of a Felony. The Superior Court sentenced him on the robbery charge
to five years at Level V incarceration, to be suspended after serving two years for
two years at Level III probation, and on the PFDCF to three years at Level V
incarceration. After his sentencing, Allen was returned to the State of
Pennsylvania to finish serving a sentence there. He was returned to Delaware in
December 2010 to begin serving his 2005 sentence. In November 2011, the
Superior Court modified Allen’s robbery sentence to five years at Level V, to be
suspended after serving two years for six months at Level IV work release and one
year at Level III probation.
(3) In February 2015, Allen was charged with his first VOP. On February
25, 2015, the Superior Court found that Allen had violated the probation on his
robbery conviction and sentenced him to five years at Level V incarceration
suspended after serving one year in prison for one year at Level III probation. The
record reflects that Allen was represented by counsel at the VOP hearing and that
counsel advised Allen of his right to appeal. Allen did not appeal the VOP finding
or sentence.
(4) In June 2015, the Department of Correction filed a progress report,
asking the Superior Court to modify Allen’s VOP sentence to two years at Level V
13;:
incarceration and to discharge him from serving any further probation as
unimproved and return him to Pennsylvania for parole supervision on his
Pennsylvania sentence. On June 15, 2015, the Superior Court issued a modified
VOP sentencing order sentencing Allen to two years at Level V incarceration, with
credit for 32 days served, with no probation to follow. Allen appeals that order.
(5) Allen raises three arguments in his opening brief on appeal. He
contends that the grounds asserted for the underlying VOP charge were false. He
also contends that he was on work release and not probation and, therefore, he
could not have been charged with a VOP. Finally, he contends that his VOP
sentence is illegal.
(6) Allen’s failure to file a timely notice of appeal from the February 25,
2015 VOP proceedings precludes this Court’s review of Allen’s claims attacking
the underlying VOP finding.l Moreover, to the extent Allen challenges the
Superior Court’s jurisdiction to issue a VOP finding while Allen was serving the
work release portion of his sentence, that claim has no merit. The Superior Court
has the authority to revoke a probationary sentence at any time, even before a
defendant begins to serve it.2
' Smith v. State, 47 A.3d 431, 434 (Del. 2012).
2 ll Del. C. § 4333(a); Perry v. State, 741 A.2d 359, 362 (Del. 1999).
(7) Allen’s claim regarding the legality of the Superior Court’s June 2015
modified VOP sentencing order does have merit. The Superior Court did not give
Allen notice or an opportunity to be heard on the DOC’s petition to increase the
Level V portion of Allen’s sentence and to discharge him from further probation.
Allen was entitled to be present, with counsel, at a hearing before the Superior
Court exercised its discretion to resentence him.3 Accordingly, the modified VOP
sentence must be vacated and this matter must be remanded for fiirther
proceedings. On remand, the Superior Court either must hold a hearing on the
DOC’s petition for modification at which Allen has the right to be present with
counsel, or it must reinstate its original VOP sentence.
NOW, THEREFORE, IT IS ORDERED that the Superior Court’s June 15,
2015 modified VOP sentencing order is hereby VACATED, and this matter is
REMANDED for further proceedings consistent with this Order. Jurisdiction is
not retained.
BY THE COURT: