IN THE SUPREME COURT OF THE STATE OF DELAWARE MATTHEW PHLIPOT, § § No. 478, 2018 Defendant Below, § Appellant, § Court Below: Superior Court § of the State of Delaware v. § § Cr. ID No. 0903021873 (S) STATE OF DELAWARE, § § Plaintiff Below, § Appellee. § Submitted: October 18, 2018 Decided: January 7, 2019

Before VAUGHN , SEITZ , and TRAYNOR , Justices.

ORDER (1) In this appeal from the Supe rior Court’s August 22, 2018 modified sentence order, the State has moved to af firm the Superior Court’s judgment on the ground that it is manifest on the face of the appellant’s opening br ief that the appeal

is without merit. We agree and affirm. (2) In 2010, the appellant, Matthew Phlipot, was convicted of two counts of rape in the fourth degree and was sentenced to twenty years of Level V incarceration, suspended after ten years fo r ten years of Level IV supervision, suspended after six months for two years of Level III probation. 1 Under 11 Del. C.

1 Phlipot was convicted of other offenses for wh ich he received Level V incarceration suspended for concurrent probation.2 § 4121—Delaware’s sex offender registra tion and community notification statute— Phlipot is designated as a Tier II sex offender. 2 (3) Phlipot began his unsuspended six- month term of Level IV supervision on April 25, 2018 when he was transferred from Level V incarcer ation to Level IV work release. On May 17, 2018, ten days after he began Level IV home confinement, Phlipot received an unexpected notice from the Smyrna police that he was required to vacate his Le vel IV placement within sixty days because the home

was located within five hundred feet of the Smyrna High School and Middle School. 3

When he was unable to find a suitable substitute home confinement placement within sixty days, Phlipot was arrested on an administrative warrant alleging that he

was in violation of a condition of his Leve l IV home confinement supervision. (4) Phlipot immediately filed a mo tion for modification of sentence explaining his dilemma and as king to be “flowed down” fro m Level IV to Level III. The violation report filed by Phlipot’s pr obation officer explained the situation but recommended that Phlipot finish his remaini ng Level IV time at Level V. On August 22, 2018, Superior Court issu ed a “modified sentence order” resentencing Phlipot,

2 11 Del. C. § 4121(d)(2)(a) (Supp. 2018) (p roviding that a sex offender convicted of rape fourth degree shall be designated to Risk Assessment Tier II). 3 See 11 Del. C. § 1112(a)(1), (b)(3) (Supp. 2018) (prohibiting a sex offende r from residing “on or within 500 feet of the property of any school . . . or other institution which has as its primary purpose the education or in struction of children under 16 years of age”). Th e record reflects that both Phlipot and his probation officer believe d that the residence— although located on School Lane—was an approved placement for sex offenders.3 effective August 22, 2018, to nine years and six months of Level V incarceration suspended immediately for two years of Le vel III probation with GPS monitoring. (5) On appeal, Phlipot objects to the GPS monitoring imposed in the

modified sentence order. He claims th at adding GPS monitoring to his Level III probation constituted an illegal increase in sentence because GPS monitoring was not included in the sentence as originally imposed and because GPS monitoring is not statutorily required for Tier II sex offenders. (6) Phlipot is correct that 11 Del. C. § 4121 does not mandate GPS monitoring for Tier II sex offenders as it does for Tier III sex offenders. 4 But the statute does not prohibit a court from imposing GPS monitoring as a condition of probation when sentencing a Tier II offe nder, as Phlipot seems to suggest. (7) The record reflects that the Superi or Court modified Phlipot’s sentence in response to his motion for modification of sentence and his probation officer’s violation report. The Superior Court adde d GPS monitoring to Phlipot’s two years of Level III probation to su bstitute for the previously-imposed Level IV home confinement, which had become problema tic when Phlipot was unable to find a replacement home confinement host. Modify ing the sentence in this way did not

4 See 11 Del. C. § 4121 (u) (“Notwithstanding any provision of this section or title to the contrary, any Tier III sex offender being monitored at Level IV , III, II, or I, shall as a condition of their probation, wear a GPS locator ankle br acelet paid for by the probationer.”).4 increase Phlipot’s punishment, 5 illegally increase his sentence, 6 or violate 11 Del. C. § 4121. (8) Appellate review of a sentence generally ends upon a determination that the sentence is within statutory limits. 7 To disturb a sentence on appeal, there must be a showing either of the imposition of an illegal sentence or of an abuse of the trial

court’s broad discretion. 8 In this case, Phlipot has no t demonstrated, and the record does not reflect, that the Superior Court imposed an illegal sentence or abused its

discretion when the court issued a m odified sentence order on August 22, 2018, resentencing Phlipot to nine years an d six months of Level V incarceration suspended immediately for two years of Level III probation with GPS monitoring. NOW, THEREFORE, IT IS ORDERED that the motion to affirm is GRANTED. The judgment of the Superior Court is AFFIRMED.

BY THE COURT: /s/ Collins J. Seitz, Jr. Justice

5 See Hassett v. State , 2011 WL 446561 (Del. Feb. 8, 2011) (hol ding that GPS monitoring required under 11 Del. C. § 4121(u) does not implicate the ex pos t facto clause because the statute is intended for public safety and is not punitive in nature (citing Smith v. State , 919 A.2d 539 (Del. 2006); Helman v. State , 784 A.2d 1058 (Del. 2001))). 6 Cf. Scarborough v. State , 2008 WL 187944 (Del. Jan. 22, 2008) (conc luding that the trial court’s reconfiguration of a suspended sentence to provide for drug treatment instead of home confinement was not tantamount to an increase in sentence and thus was not illegal). 7 Mayes v. State , 604 A.2d 839, 845 (Del. 1992). 8 Weber v. State , 655 A.2d 1219, 1221 (Del. 1995).