IN THE SUPREME COURT OF THE STATE OF DELAWARE

CARMELO DIAZ,

Defendant Below,

Appellant,

v.

STATE OF DELAWARE,

Appellee.

§

§ No. 42, 2023

§

§ Court Below—Superior Court

§ of the State of Delaware

§ 

§ Cr. ID Nos. K1708014930

§ K1609018643

§ K1902014670

§ K1709005673

§

Submitted: May 11, 2023

Decided: June 15, 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) The appellant, Carmelo Diaz, filed this appeal from his sentencing 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 Diaz’s opening brief that his appeal 

is without merit. We agree and affirm.

(2) On November 15, 2017, Diaz resolved charges in three cases by 

pleading guilty to three counts of third-degree burglary. For each count, the Superior 

Court sentenced Diaz, effective August 21, 2017, to imprisonment for three years, 

suspended for one year of Level III probation with GPS monitoring, with probation 
2

to run concurrently. Diaz was adjudicated to be in violation of probation in these 

cases in 2017, 2018, and 2019. 

(3) On April 3, 2019, Diaz pleaded guilty to a charge of third-offense 

driving under the influence. As later modified, the Superior Court sentenced Diaz, 

effective February 24, 2019, to two years of imprisonment, suspended after ninety 

days for one year of a Level III intensive outpatient treatment program. In January 

2020, February 2021, and February 2022, Diaz was adjudicated to be in violation of 

probation.

(4) On November 18, 2022, a probation officer filed a VOP report alleging 

that Diaz had failed to report to probation as required on four dates in October and 

November 2022; that Diaz had urine screens in September and October 2022 that 

showed positive results for alcohol and oxycodone, which he was prohibited from 

possessing or consuming; and that he had been discharged from Aftercare for 

noncompliance. At a VOP hearing on January 6, 2023, Diaz admitted that he was 

in violation of the terms of his probation. As to sentencing, he stated that he 

struggled to maintain a job while trying to comply with probation supervision and 

requested that the court sentence him to time served followed by Level I probation 

so that he could pay his fines and restitution without further significant monitoring 

by probation. The Superior Court found Diaz in violation of probation and sentenced 

him as follows: for third-degree burglary, to three years of imprisonment, suspended 
3

after successful completion of a program in DOC’s Discretion for six months of 

Level IV DOC Discretion, suspended after successful completion for six months of 

Level IV Work Release, followed by one year of Level III probation; for third-degree 

burglary, to one year and eleven months, suspended for six months of Level IV Work 

Release, followed by one year of Level III probation; for the third-offense DUI, to 

one year and two months of imprisonment, suspended for one year of Level III 

probation; and for third-degree burglary, to two years, five months, and eight days 

of imprisonment, suspended for six months of Level IV Work Release, followed by 

one year of Level III probation.

(5) On appeal from his January 6, 2023 VOP sentence, Diaz contends that 

the Superior Court abused its discretion by imposing Level III probation for 

“technical violations” and that he cannot comply with Level III supervision while 

maintaining employment and meeting his financial obligations. We find no 

reversible error. “It is well-established that appellate review of sentences is 

extremely limited.”1 Our review of a sentence generally ends upon a determination 

that the sentence is within the statutory limits prescribed by the legislature.2 If the 

sentence falls within the statutory limits, “we consider only whether it is based on 

factual predicates which are false, impermissible, or lack minimal reliability, judicial 

1 Kurzmann v. State, 903 A.2d 702, 714 (Del. 2006).

2 Mayes v. State, 604 A.2d 839, 842 (Del. 1992).
4

vindictiveness or bias, or a closed mind.”3 When sentencing a defendant for a VOP, 

the trial court may impose any period of incarceration up to and including the 

balance of the Level V time remaining to be served on the original sentence.4 Diaz 

does not contend that the sentence imposed exceeded the Level V time remaining on 

his sentence. The Superior Court acted within its discretion when sentencing Diaz 

for his admitted violation of probation.

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

3 Kurzmann, 903 A.2d at 714.

4

11 Del. C. § 4334(c).