McCullough v. State ( 2017 )

IN THE SUPREME COURT OF THE STATE OF DELAWARE
ROBERT B. McCULLOUGH, §
§
Defendant Below- § No. 51, 2017
Appellant, §
§
v. § Court Below—Superior Court
§ of the State of Delaware
STATE OF DELAWARE, §
§ Cr. ID Nos. 1408018146 and
Plaintiff Below- § 1408018135
Appellee. §
Submitted: March 17, 2017
Decided: May 16, 2017
Before STRINE, Chief Justice; VAUGHN, and SEITZ, Justices.
ORDER
This 16th day of May 2017, upon consideration of the appellant’s opening
brief, the State’s motion to affirm, and the record below, it appears to the Court
that:
(1) The appellant, Robert McCullough, filed this appeal from the Superior
Court’s January 6, 2017 order sentencing him for his second violation of probation
(VOP). The State has filed a motion to affirm the judgment below on the ground
that it is manifest on the face of McCullough’s opening brief that his appeal is
without merit. We agree and affirm.
(2) The record reflects that McCullough pled guilty on May 19, 2015 to
one count of Operating a Clandestine Drug Lab and one count of Burglary in the
Third Degree, which were charged under two separate indictments. On the drug
lab conviction, the Superior Court immediately sentenced McCullough, effective
August 22, 2014, to fifteen years at Level V imprisonment, suspended immediately
for eighteen months at Level II Teen Challenge. On the burglary conviction,
McCullough was sentenced to three years at Level V, suspended immediately for
one year at Level II probation.
(3) After the Superior Court modified McCullough’s sentence on March
10, 2016 to add a zero tolerance provision for drug use, McCullough was charged
with his first VOP. On May 13, 2016, the Superior Court sentenced McCullough
on his drug lab conviction, effective April 25, 2016, to fifteen years at Level V,
suspended immediately for one year at Level IV Crest, to be suspended upon
successful completion of Level IV for one year at Level III Crest Aftercare. The
VOP sentence on the burglary conviction did not change.
(4) On December 21, 2016, McCullough was charged with his second
VOP. The violation report alleged that McCullough had reported to his Level III
probation officer on December 14, 2016, within three days of his release from
Level IV supervision at the Morris Community Corrections Center (“MCCC”).
McCullough told his probation officer that he had used heroin that possibly had
been laced with cocaine while he was at MCCC. McCullough told his probation
officer that he had reported his drug use to correctional officers at MCCC before
2
he was required to provide a urine sample. The probation officer was able to
obtain McCullough’s urine screen results from MCCC. The results indicated that
McCullough had tested positive for multiple narcotics on December 10, 2016.
Moreover, the violation report stated that McCullough signed an admission form
on December 20, 2016, admitting to his heroin use while under MCCC’s
supervision.
(5) The Superior Court held a VOP hearing on January 6, 2017.
McCullough was represented by counsel. The Superior Court found McCullough
in violation and sentenced him on the drug lab conviction, effective December 20,
2016, to fifteen years at Level V incarceration, to be suspended upon successful
completion of the Key Program for one year at Level III probation. On the
burglary charge, the Superior Court again sentenced McCullough to three years at
Level V incarceration, to be suspended for one year at Level III probation.
McCullough appeals his VOP sentence.
(6) McCullough arguably raises three issues in his opening brief on
appeal. First, he contends that the Superior Court’s VOP sentence failed to credit
him with all of the time that he previously served in prison on his sentence.
Second, McCullough asserts that the Superior Court erred in failing to do a case
study before sentencing him. Finally, McCullough argues that the evidence was
insufficient to prove that he violated his Level III probation.
3
(7) In order to prove that a defendant violated his probation, the State
must present some competent evidence to reasonably satisfy the judge that the
defendant’s conduct has not been as good as required by the conditions of his
probation.1 We review the trial court’s finding of a VOP for abuse of discretion.2
As the appealing party, the appellant is required to provide this Court with a copy
of the transcript necessary to review any claims raised on appeal.3 McCullough
failed to request a transcript of the VOP hearing for this appeal. Thus, to the extent
McCullough challenges the sufficiency of the evidence presented at the VOP
hearing, we are unable to review his claim without a transcript of the hearing.
(8) To the extent McCullough is arguing that he could not be charged
with a violation by his Level III probation officer for a drug test that he had failed
while at Level IV, McCullough is incorrect. The Superior Court’s March 10, 2016
sentencing order added a zero tolerance provision for drug use. That condition
applied to all levels of McCullough’s sentence and was reimposed when
McCullough was sentenced for his first VOP in May 2016. The Superior Court
properly could find that McCullough had committed his second VOP for drug use
that he admitted to engaging in on December 10, 2016 while he was at MCCC.
1
Jenkins v. State, 8 A.3d 1147, 1152-53 (Del. 2010).
2
Cruz v. State, 990 A.2d 409, 412 (Del. 2010).
3
Tricoche v. State, 525 A.2d 151, 154 (Del. 1987).
4
(9) McCullough also claims that the Superior Court erred by sentencing
him without first ordering a case study to determine his treatment needs and by
failing to credit him with all of the time he previously served on his sentence. This
Court previously has held that the Superior Court is not required to obtain a case
study before sentencing a defendant for a VOP.4 Moreover, McCullough did not
raise his credit time issue to the Superior Court in the first instance.5 It appears
from the face of the January 6, 2017 sentencing order that the Superior Court may
not have credited McCullough with time that he had previously served at Level V
on his original sentence.6 However, because McCullough did not raise this claim
below, the record on appeal is insufficient for this Court to determine what credit
McCullough may be due.
(10) This Court’s review of a sentence generally is limited to determining
whether the sentence is within statutory limits.7 Once the State has proven by a
preponderance of evidence that a VOP has occurred, the Superior Court is
authorized to impose any period of incarceration up to and including the balance of
the Level V time remaining to be served on the original sentence.8 In this case, the
4
Smith v. State, 2017 WL 1399749 (Del. Apr. 18, 2017).
5
See Del. Supr. Ct. R. 8.
6
For example, the Superior Court’s original sentencing order, dated May 19, 2015, was made
effective as of August 22, 2014, reflecting that McCullough may have served nine months in
prison before he initially pled guilty and was sentenced. The Superior Court’s subsequent
modified sentencing orders and VOP order do not reflect credit for that time.
7
Mayes v. State, 604 A.2d 839, 842-43 (Del. 1992).
8
11 Del. C. § 4334(c) (2007).
5
Superior Court incorrectly reimposed all of the Level V time from McCullough’s
original sentence, but suspended all of it upon his successful completion of the
Level V Key program. Although the fifteen-year limit on McCullough’s sentence
should be amended to reflect McCullough’s previous time served, the suspended
portion of McCullough’s VOP sentence was well within statutory limits, was not
excessive, and in no way reflects a closed mind by the sentencing judge.9 To the
extent McCullough is due credit for time previously served, he must raise that
issue to the Superior Court in the first instance by filing a motion for credit time so
that the Superior Court can make the factual determination of what credit
McCullough is due.
NOW, THEREFORE, IT IS ORDERED that the judgment of the Superior
Court is AFFIRMED.
BY THE COURT:
/s/ Collins J. Seitz, Jr.
Justice
9
See Weston v. State, 832 A.2d 742, 746 (Del. 2003).
6