IN THE SUPREME COURT OF THE STATE OF DELAWARE

FREDERICK W. SMITH, JR.,

Defendant Below,

Appellant,

v.

STATE OF DELAWARE,

Appellee.

§

§ No. 147, 2023

§

§ Court Below—Superior Court

§ of the State of Delaware

§ 

§ Crim. ID No. 93007368DI (N)

§

§ 

§

Submitted: May 11, 2023

Decided: June 13, 2023

Before SEITZ, Chief Justice; VALIHURA and TRAYNOR, Justices.

ORDER

(1) The appellant, Frederick W. Smith, Jr., filed this appeal from the 

Superior Court’s order, dated April 21, 2023, denying his motion for correction of 

an illegal sentence. The State has moved to affirm the Superior Court’s judgment 

on the ground that it is manifest on the face of Smith’s opening brief that his appeal 

is without merit. We agree and affirm.

(2) In 1993, a Superior Court jury convicted Smith of two counts of seconddegree unlawful sexual intercourse, third-degree unlawful sexual penetration, and 

third-degree assault. In January 1994, the Superior Court sentenced him to a total 
2

of thirty-six years in prison, suspended after thirty-two years for probation. This 

Court affirmed on direct appeal.1

(3) Shortly after his release from prison on probation and conditional 

release, Smith was charged with a violation of probation (“VOP”) and conditional 

release. At a hearing on March 17, 2021, the Superior Court found that Smith had 

violated his probation and conditional release and deferred sentencing, ordering that 

Smith first undergo a presentencing psychiatric evaluation. On August 31, 2021, the 

Superior Court discharged Smith’s conditional release and sentenced him on the 

VOP to four years of imprisonment, suspended for two years of Level III probation 

with GPS monitoring (the “First VOP Sentence”). The First VOP Sentence also 

provided that Smith was required to complete sex offender treatment while on Level 

III probation and expressed “zero tolerance” for failure to do so.

(4) On October 7, 2021, a probation officer filed an administrative warrant 

alleging that Smith was in violation of probation because, among other alleged 

violations, he refused to sign documents allowing a counselor to begin the 

assessment for sex offender treatment. At a hearing on November 3, 2021, the 

Superior Court found that Smith had violated his probation. The court sentenced 

him to four years of imprisonment, suspended after eleven months and successful 

completion of the Transitions Sex Offender program for six months of Level III 

1

Smith v. State, 669 A.2d 1 (Del. 1995).
3

probation (the “Second VOP Sentence” and, together with the First VOP Sentence, 

the “2021 VOPs”).

(5) Smith did not appeal from the Second VOP Sentence. On January 13, 

2022, he filed a motion for correction of illegal sentence, in which he asserted that 

the Second VOP Sentence was illegal because the probation officer made false 

allegations regarding his refusal to sign the sex offender assessment paperwork and 

the other alleged violations. He filed an amendment to the motion on February 4, 

2022, in which he contended that the VOP sentence was illegal because the court 

could impose no more than thirty days of incarceration for Smith’s “alleged petty 

violation of probation.” The Superior Court denied the motion. Smith appealed to 

this Court, and this Court affirmed.

2

(6) Smith then filed a second motion for correction of illegal sentence, in 

which he argued that the First VOP Sentence was illegal because it required him to 

complete sex offender treatment while on Level III probation, a condition that was 

not included in the original, 1994 sentence. The Superior Court denied the motion, 

and Smith has appealed to this Court.

(7) We review the denial of a motion for correction of sentence for abuse 

of discretion.3 To the extent the claim involves a question of law, we review the

2

Smith v. State, 2022 WL 2715728 (Del. July 12, 2022).

3 Fountain v. State, 2014 WL 4102069, at *1 (Del. Aug. 19, 2014).
4

claim de novo.

4

 A sentence is illegal if it exceeds statutory limits, violates double 

jeopardy, is ambiguous with respect to the time and manner in which it is to be 

served, is internally contradictory, omits a term required to be imposed by statute, is

uncertain as to its substance, or is a sentence that the judgment of conviction did not 

authorize.5

(8) We affirm the Superior Court’s denial of Smith’s motion. The First 

VOP Sentence is not illegal because it added a special condition requiring Smith to 

participate in sex offender treatment while on probation. 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.6 The Superior Court’s decision to impose a period of incarceration within 

the balance of Level V time remaining and to suspend that period for probation, 

conditioned upon completion of a treatment program while on probation, did not 

make the sentence illegal.

(9) Based on Smith’s excessive, repetitious, frivolous, and meritless filings 

over the years, in three earlier orders this Court has directed the Clerk of this Court 

to refuse any filings from Smith related to his 1993 convictions unless he filed a 

complete motion to proceed in forma pauperis with a sworn affidavit containing the 

4

Id.

5 Brittingham v. State, 705 A.2d 577, 578 (Del. 1998).

6

11 Del. C. § 4334(c).
5

certifications required by 10 Del. C. § 8803(e) and that motion was first granted by 

this Court.7 This Court has accepted filings and allowed Smith to proceed in forma 

pauperis in several appeals relating to the 2021 VOPs because the appeals related to 

new proceedings or sentence orders.8 The Court also has reminded Smith that the 

previously imposed limitations on his filings remain in place.9 The 2021 VOPs are 

no longer new, and the Court has reviewed decisions relating to the adjudications 

and the sentences, to the extent that Smith has filed timely appeals from such 

decisions. The Court will not allow Smith to proceed in forma pauperis as to any 

further frivolous and meritless filings relating to the 2021 VOPs.

NOW, THEREFORE, IT IS ORDERED that the motion to affirm is 

GRANTED and the judgment of the Superior Court is AFFIRMED. The Clerk of 

the Court is directed to refuse any filing from Smith, including any filing relating to 

the 2021 VOPS, unless the filing is accompanied by the required filing fee or the 

filing is accompanied by a completed motion to proceed in forma pauperis, with an

7

Smith v. State, 325, 2017 (Del. Sept. 26, 2017); In re Smith, 229, 2014 (Del. May 29, 2014); 

Smith v. State, 259, 2009 (Del. Sept. 10, 2009).

8

See Smith v. State, 369, 2022 (Del. Nov. 15, 2022) (granting motion to proceed in forma pauperis

in appeal from denial of motion to correct purported clerical mistake in VOP sentence order); 

Smith v. Mears, 232, 2022 (Del. July 19, 2022) (granting motion to proceed in forma pauperis in 

appeal from denial of petition for a writ of habeas corpus); Smith v. State, 76, 2022 (Del. Mar. 28, 

2022) (granting motion to proceed in forma pauperis because the appeal from denial of a motion 

for correction of illegal sentence related to a new sentence, the VOP sentence imposed on 

November 3, 2021); Smith v. State, 285, 2021 (Del. Sept. 24, 2021) (granting motion to proceed 

in forma pauperis in appeal from denial of petition for a writ of habeas corpus)

9

Smith v. State, 76, 2022 (Del. Mar. 28, 2022); Smith v. State, 285, 2021 (Del. Sept. 24, 2021).
6

affidavit containing the 10 Del. C. § 8803(e) certifications, and that motion is first 

granted by the Court.

BY THE COURT:

/s/ Karen L. Valihura

Justice