Hickman v. State ( 2023 )

IN THE SUPREME COURT OF THE STATE OF DELAWARE
STEVEN L. HICKMAN, §
§ No. 385, 2022
Defendant Below, §
Appellant, § Court Below—Superior Court
§ of the State of Delaware
v. §
§ Cr. ID Nos. S2111007403
STATE OF DELAWARE, § S2112001120
§
Appellee. §
Submitted: December 1, 2022
Decided: January 12, 2023
Before SEITZ, Chief Justice; VALIHURA and TRAYNOR, Justices.
ORDER
Upon consideration of the appellant’s opening brief, the appellee’s motion to
affirm, and the record below, it appears to the Court that:
(1) Steven L. Hickman filed this appeal from a Superior Court order
sentencing him for a violation of probation (“VOP”). The State has moved to affirm
the judgment below on the ground that it is manifest on the face of Hickman’s
opening brief that the appeal is without merit. We agree and affirm.
(2) On February 7, 2022, Hickman pleaded guilty to theft of $1500 or more,
second-degree conspiracy, and possession of a deadly weapon by a person prohibited
(“PDWBPP”). The Superior Court sentenced Hickman as follows: for felony theft,
to two years of imprisonment, suspended for one year of Level III probation; for
second-degree conspiracy, to two years of imprisonment, suspended for one year of
Level III probation; and for PDWBPP, to three years of imprisonment, suspended
for one year of Level III probation.
(3) On July 6, 2022, a probation officer filed a VOP report. The report
alleged that Hickman was in violation of probation because on March 4, 2022, police
had arrested Hickman and charged him with disorderly conduct; police had charged
Hickman with driving with a suspended or revoked license and other motor-vehicle
offenses on four dates in April, May, and June 2022; a warrant against Hickman for
shoplifting had issued on July 2, 2022; Hickman had not reported any police contact
to probation; Hickman had failed to report to probation for required office visits on
multiple occasions; Hickman had moved out of the residence that he had reported as
his address, without reporting a change of address to probation, and the officer had
been unable to contact Hickman since that time; and Hickman had failed to report
for a scheduled substance-abuse evaluation as required by his sentencing order. On
September 14, 2022, a probation officer filed another VOP report alleging that, in
addition to the previously reported violations, Delaware State Police had arrested
Hickman on September 5, 2022, and charged him with additional offenses, including
carrying a concealed dangerous instrument.
(4) At a VOP hearing on October 7, 2022, the Superior Court found
Hickman in violation of probation and sentenced him as follows: for felony theft,
2
to one year and ten months of imprisonment, suspended upon successful completion
of a program selected by the Department of Correction for one year of Level III
probation; for second-degree conspiracy, to two years of imprisonment, suspended
for one year of Level III probation; and for PDWBPP, to three years of
imprisonment, suspended for one year of Level III probation. Hickman has
appealed.
(5) On appeal, Hickman appears to argue that the court could not find him
to be in violation of probation for incurring new criminal charges before he was
convicted of the new offenses. The record before the Court on appeal does not
reflect on what basis the Superior Court found Hickman to be in violation of
probation.1 But the VOP report asserted that Hickman was in violation of probation
based on incurring new charges and failing to report police contact; Hickman does
not dispute that he incurred new charges, nor does he claim that he reported his
contact with police. The Superior Court has the authority to revoke probation and
to impose a VOP sentence on the basis that a probationer has been charged with new
criminal conduct, regardless of whether the new charges have yet been adjudicated.2
1
See Tricoche v. State, 525 A.2d 151, 154 (Del. 1987) (stating that the appellant has the burden to
produce such portions of the transcript as are necessary to give this Court a fair and accurate
account of the context in which the claim of error occurred and all evidence relevant to the
challenged finding or conclusion).
2
See Wood v. State, 2012 WL 3656404, at *1 (Del. Aug. 24, 2012) (“There is no merit to Wood’s
claim that he could not be found guilty of a VOP on the basis of new and unproven criminal
charges. Delaware law provides that the Superior Court has the authority to revoke probation on
the basis that a probationer has been charged with new criminal conduct.”); Cruz v. State, 990 A.2d
3
Moreover, unlike in a criminal trial, the State must prove a VOP by only a
preponderance of the evidence, which is “some competent evidence” to “reasonably
satisfy the judge that the conduct of the probationer has not been as good as required
by the conditions of probation.”3 Because the standard of proof of a VOP is lower
than the “reasonable doubt” standard that applies in a criminal trial, “we have held
that the Superior Court has the authority to revoke a defendant’s probation for
incurring new criminal charges even if those charges are later dismissed.” 4
(6) Hickman also appears to challenge the allegation in the VOP report that
he failed to report to numerous required office visits on the basis that he called or
sent information via fax to the probation officer instead. Again, although Hickman
has not provided a transcript of the VOP hearing, his argument seems to concede
that he did not attend the required meetings. We find no basis for reversing the
Superior Court’s determination that Hickman had violated his probation.
(7) Finally, to the extent that Hickman challenges the VOP sentence that
the Superior Court imposed, this Court’s appellate review of a sentence is extremely
limited and generally ends upon a determination that the sentence is within statutory
409 (Del. 2010) (affirming VOP that was based on probationer’s incurring new criminal charges
of which defendant had been acquitted before VOP was imposed); see also Kurzmann v. State,
903 A.2d 702, 717 (Del. 2006) (“The State can proceed against a probationer by filing a VOP
petition alleging a new criminal offense, even if the State concedes that it does not have enough
evidence to prosecute the probationer and to establish beyond a reasonable doubt that he has
committed the underlying criminal offense.”).
3
Trotter v. State, 2022 WL 2311083, at *1 (Del. June 27, 2022) (internal quotations omitted).
4
Id.4
limits.5 Once Hickman committed a VOP, the Superior Court was authorized to
impose any period of incarceration up to and including the balance of Level V time
remaining on his sentence.6 The record does not reflect, and Hickman does not
argue, that the VOP sentence exceeded statutory limits or the Level V time that was
previously suspended. We find no basis for reversal.
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/ Collins J. Seitz, Jr.
Chief Justice
5
Kurzmann, 903 A.2d at 714.
6
11 Del. C. § 4334(c).
5