Ibirithi v. State ( 2016 )

lN THE SUPREl\/IE COURT OF THE STATE OF DELAWARE
CLIFFORD K. IBIRITHI, §
§
Defendant BeloW- § No. 683, 2015
Appellant, §
§
v. § Court BeloW-Superior Court
§ of the State of DelaWare,
STATE OF DELAWARE, §
§ Cr. lDl4070l5460
Plaintiff BeloW- §
Appellee. §
Submitted: February l, 2016
Decided: April 5, 2016
Before STRINE, Chief Justice, HOLLAND, and VALIHURA, Justices.
0 R D E R
This 5“‘ day of April 20l6, upon consideration of the appellant’s
opening brief, the State’s motion to affmn, and the record below, it appears
to the Court that:
(l) The defendant-appellant, Clifford Ibirithi, filed this appeal from
the Superior Court’s order, dated November 19, 2015, sentencing him for a
violation of probation ("VOP"). Ibirithi’s sole claim on appeal is that the
Superior Court lacked jurisdiction to adjudicate a VOP charge against him
because he had completed his term of probation before he was charged with
a VOP. The State has moved to affirm the Superior Court’s judgment on the
ground that it is manifest on the face of Ibirithi’s opening brief that his
appeal is without merit. We agree and affirm.
(2) The record reflects that Ibirithi pled guilty on January 5, 2015
to one count of DUI. The Superior Court immediately sentenced him,
effective October 14, 20l4, to five years at Level V imprisonment to be
suspended after serving six months in prison for one year at Level III
probation. On October 2, 2015, Ibirithi was arrested for crimes that had
been committed on September 25, 2015. As a result of that arrest, Ibirithi
pled guilty to shoplifting on October 9, 2015. On October 12, 2015, the
Department of Correction filed a VOP report based on Ibirithi’s new
criminal charges. On November 19, 2015 , the Superior Court found Ibirithi
in violation of the terms of his previously imposed probation and sentenced
him to four years and six months as Level V incarceration, to be suspended
after serving one year in prison for six months at Level IV work release with
no further probation to follow. Ibirithi appeals this sentence.
(3) In his opening brief on appeal, Ibirithi asserts that he was
released from prison on March l3, 2015 to begin serving a six-month term
of probation that was to end on September l3, 2015. Ibirithi contends that
he successfully completed the probation associated with his DUI sentence on
September l3, 2015 and that the Superior Court thus had no jurisdiction to
sentence him for a VOP that arose from the new charges he incurred after he
had completed his probation.
(4) In response, the State asserts that the factual premise of
Ibirithi’s argument is incorrect. The State points out that the Superior Court
sentenced Ibiritlii on his DUI conviction to serve six months in prison
followed by one year at Level III probation, not six months probation, as
Ibirithi contends. Ibirithi thus was still on probation in October 2015 when
he was charged with the VOP arising from his shoplifting offense.
(5) The record supports the State’s assertion, and Ibirithi has
offered no argument suggesting that he had been released early from his
one-year probationary terrn. Under the circumstances, there is no factual
basis for Ibirithi’s contention that the Superior Court lacked jurisdiction to
sentence him for a VOP. Moreover, given Ibirithi’s October 2015 guilty plea
to shoplifting, there was sufficient evidence to support a finding that Ibirithi
committed a VOP.l Further1nore, the Superior Court’s VOP sentence was
legal.z
1 DeJesus v. State, 977 A.2d 797, 799 (Del. 2009) (defendant’s guilty plea supported
VOP finding).
2 State v. Sloman, 886 A.2d l257, 1260 (Del. 2005) (holding that, upon finding a VOP,
the Superior Court may require a defendant to serve any time remaining to be served
from the defendant’s original sentence or any lesser sentence).
NOW, THEREFORE, IT IS ORDERED that the judgment of the
Superi0r Court is AFFIRl\/[ED.
BY THE COURT:
ustice