IN THE SUPERIOR COURT O F THE STATE OF DELAWARE

JAMES DURHAM, ) ) Appellant, ) )

v. ) I.D. No. 1507019715 ) I.D. No. 1508002923 ) STATE OF DELAWARE, ) ) Appellee

. )

Submitted: August 25, 2016 Decided: November 3 , 2016

CORRECTED MEMORANDUM OPINION

On Appeal from the Court of Common Pleas

AFFIRMED

James Durham, Appellant

. Tianna Bethune, Esq., Deputy Attorney General, Department of Justice, 820 N. French Street, Wilmington, DE 19801, Attorney for Appellee.

ROCANELLI, J.1 PROCEDURAL BACKGROUN D
On August 4, 2015, Defendant James Durham (“Defendant”) was arrested
and charge d with Shoplifting 1 after stealing electron ics from a Boscov’s
department s tore in Newark, Delaware (“August 4 Shoplifting”)

. At the time of

Defendant’s arrest, Defendant was a suspect in the July 16, 2015 theft of a power
drill from a Lowe’s home improve ment store in Middletown, Delaware

. On August 5, 2015, following an investigation by the Middletown Police

Department, Defendant was charged with a second count of Shoplifting in

connection with the July 16, 2015 theft of the power drill (“July 16 Shoplifting”). 2

On August 21, 2015, Defendant appeared before the Court of Common Pleas
(“Trial Court”) and pleaded guilty to both the August 4 and July 16 Shoplifting s

. As to the July 16 Shoplifting , Defendant was sentenced to 12 months at Level V,
suspended for 1 year at Level II probation

. As to the August 4 Shoplifting
,
Defendant was sentenced to 12 months at Level V, s uspended for 1 year at Level II
probation . The Court mandated substance abuse eval uation and treatment as a

condition of probation

. Accordingly, when sentencing Defendant, the Trial Court
gave Defendant the opportunity to avoid incarceration and also offered the benefit

1 11 Del. C. § 840. 2 A Lowe’s employee provided the Middletown Police Department with a surveillance video depicting an individual taking the power drill without paying. The investigating officer conducted a pawn inquiry using the power drill’s model number. The pawn inquiry revealed that Defendant had recently pawned a power drill with the same model number. Upon conducting a database inquiry, the investigating officer discovered that Defendant matched the appearance of the individual depicted in the surveillance video.2

of substance ab use treatment in the community. Defendant failed to take
advantage of those opportunitie s.
On December 10, 2015, a urinalysis was conducted on Defendant by
Defendant’s supervising probation officer

. 3 The urinalysis indicted that Defendant
tested positive for cocaine and opiates. The terms and conditions of Defendant’s

probation prohibited Defendant from consuming controlled substances without a
prescription

. On January 5, 2016, Defendant failed to report for a n office visit with

Defendant’s supervising probation officer. The terms of Defendant’s probation

required Defendant to report to his supervising probation officer as directed.
On January 8, 2016, the Middletown Police Department issued a w arrant for

Defendant’s arrest after Defendant stole electronics from a Wal

- Mart in

Middletown, Delaware (“Januar y 8 Shoplifting”)

. 4 The terms of Defendant’s
probation prohibited Defendant from committing a criminal offense during his
probation ary period.

3 De fendant’s Shoplifting probation required Defendant to submit to random drug screenings at the request of Defendant’s supervising probation officer. 4 On March 18, 2016, Defendant appeared before the Trial Court and pleaded guilty to the January 8 Shoplift ing. Defendant was sentenced to 1 year at Level V, suspended for 12 months at Level III. Defendant’s appeal does not implicate the January 8 Shoplifting conviction or any violations of probation pursuant thereto. Nevertheless, the January 8, 2016 issuan ce of an arrest warrant for Defendant provided a basis , among others, for the violation of probation report filed by Defendant’s supervising probation officer on January 13, 2016.3

On January 13, 2016
, Defendant’s supervising probation officer filed a
report alleging violation s of probation against Defendant. Defendant’s supervising

probation officer cited the December 10 urinalysis, Defendant’s failure to report to
the January 5 office visit, and Defendant’s alleged January 8 Shoplifting as the

basis for the violation s. Defendant’s supervising probation officer also noted

Defendant’s disregard for authority as evidence that Defendant was not amenable
to community

- based supervision. Defendant’s supervising probation officer
requested for Defendant to be held at a higher supervision l evel.
Two days later, o n January 15, 2016, Defendant was arrested and charged in
Aberdeen, Maryland, for Theft and Assault Second Degree (“Maryland Theft”)

. Defendant was found guilty in connection with the Maryland T heft and sentenced

to sixty days inc arceration at the Harford County Detentio n Center in Bel Air,
Maryland. The terms of D efendant’s Delaware probation prohibited Defendant
from committing a criminal offense during his probationary period. The terms of

Defendant’s Delaware probation also prohibited Defendant from leaving the State

of Delaware without receiving approval from Defendant’s supervising probation

officer. The criminal conduct in Maryland violated these conditions.
On March 4, 2016, Defendant’s supervising probation officer fil ed a report
alleging a second violation of probation

. Defendant’s supervising probation officer

cited the Maryland Theft as the basis for the second violation. Defendant’s4

supervising probation officer again requested for Defendant to be held at a higher
supervision level.
On April 8, 2016, after his release by the Maryland authorities, Defendant
appeared before the Trial Court for a n uncontested hearing regarding Defendant’s
violations of prob ation (“April 8 VOP Hearing”). T he Trial Court found that
Defendant could not or would not conform his conduct to the obligations imposed
on him by statute, by the Court, or by the terms and conditions of his probation.
Defendant was sentenced for violation of probation after a violation

- of

- prob ation
hearing was held, and the Trial Court determined that Defendant had violated the
terms of his probation.
In crafting a sentence for Defendant, the Trial Court considered Defendant’s
extensive criminal history of numerous convictions that preceded t he Shoplifting
convictions at issue in this case, including convictions for Assault, Theft, Burglary,
Robbery, Criminal Impersonation, Possession of a Controlled Substance
, and
Shoplifting. Defendant had also been found in violation of probation on more t han
ten prior occasions.
By Order dated April 8, 2016
, Defendant’s original sentence was revoked ;

Defendant was sentenced to 6 months a t Level V for the July 16 Shoplifting

conviction; and 3 months at Level V for the August 4 Shoplifting conviction
(“VO P Sentencing Order”). Accordingly
, in consideration of Defendant’s history5

of convictions and probation violations, the Trial Court determined Defendant was
not amenable to community

- based supervision and s entenced Defendant to nine

months at Level V, no probation to follow.

On June 29, 2016, Defendant appealed the VOP Sentencing Order to this

Court as a self

- represented litigant . Defendant challenges the legality of his

sentence. Defendant submitted briefing in support of the appeal
, and the State

submitted briefing in opposition thereto. This is the Court’s decision regarding
Defendant’s appeal of the VOP Sentencing Order

.
DISCUSSION

Defendant argues that the VOP Sentencing Order constituted an abuse of

discretion . Specifically, Defendant argu es that the Trial Court abused its discretion
by deviating from the Truth in Sentencing Act guidelines established by the
Sentencing Accountability Co m mission (“SENTAC Guidelines”). Defendant also

contends that the Trial Court misinterpreted Defendant’s c riminal history and

failed to articulate the aggravating circumstances that supported a deviation from

the SENTAC Guidelines

. Finally, Defendant argues that the Trial Court ’s failure

to include substance abuse treatment in Defendan t’s sentencing order also

constitutes an abuse of discretion

.6

A

. Standard of Review for Sentenc ing
A sentencing judge has the flexibility to consider the nature of the offense,
the character of the defendant, and all other information related to mitigation or
aggravation of the sentence to be imposed. 5 Moreover, the sentencing judge has
“broad discretion to consider ‘information pertaining to a defendant’s personal

history and behavior which is not confined exclusively to the conduct for which

that defendant was convicted.’ ” 6 A sentencing judge may choose to extend or

withhold leniency based upon the individual defendant and the unique

circumstances of a particular case

. 7 Accordingly, sentencing decisions are

reviewed under an abuse of discretion standard. 8

Appellate review of sentencing is “ extremely limited .” 9 The reviewing

court’s inquiry “ generally ends upon determination that the sentence is within the
statutory limits prescribed by the legislature.” 10 A sentence that fa lls within
statutorily prescribed limits will be set aside only where the sentence is “based on

5 See Nastatos v. State , 2014 WL 1512287, at *4 (Del. Apr. 15, 2014); Kurzma nn v. State , 903 A.2d 702, 714 (Del. 2006); Weston v. State , 832 A.2d 742, 746 (Del. 2003). 6 Siple v. State , 701 A.2d 79, 85 (Del. 1997) (quoting Mayes v. State , 604 A.2d 839, 842 (Del. 1992)). 7 Siple , 701 A.2d at 85 (citing United States v. Jones , 997 F.2d 1475, 1478 (D.C. Cir. 1993)). 8 Fink v. State , 817 A.2d 781, 791 (Del. 2003) (citing Cheeks v. State , 2000 WL 1508578, at *2 (Del. Sept. 25, 2000)); Walt v. State , 727 A.2d 836, 840 (Del. 1999) (citing Mayes , 604 A.2d at 842

– 43). 9 Wyant v. State , 2016 WL 3549101, at *2 (Del. May 25, 2016); Nelson v. State , 2016 WL 3474354, at *2 (Del. May 24, 2016); Smith v. State , 2014 WL 5421251, at *2 (Del. Oct. 23, 2014); Kurzmann , 903 A.2d at 714 (quoting Mayes , 604 A.2d at 842). 10 Scannapieco v. State , 201 6 WL 3450022, at *2 (Del. May 20, 2016) (quoting Ward v. State
, 567 A.2d 1296, 1297 (Del. 1989)); White v. State , 2004 WL 906531, at *1 (Del. Apr. 20, 2004); Mayes , 604 A.2d at 842; Gaines v. State , 571 A.2d 765, 766 (Del. 1990).7

factual predicates which are false, impermissible, or lack minimal reliability,
judicial vindictiveness or bias, or a close d mind.” 11

B. The Trial Court ’s Deviation f rom SENTAC Guidelines Does Not Constitute a Proper Basis f or Appeal.

The Delaware Supreme Court has consistently held that the SENTAC

Guidelines are non

- binding, 12 and that “[a] defendant has no legal or constitutional

right to appeal a statutorily authorized sentence simply beca use it does not conform
to the sentencing guidelines established by the Sentencing Accountability

Commission.” 13 Defendant’s sentence is within the statutorily prescribed

limitations for Defendant’s Shoplifting convictions. 14 Therefore, the Trial Court’s

de viation from the SENTAC Guidelines, taken alone, does not constitute an abuse

of discretion and is not a proper basis for appeal. 15

11 Hickman v. State , 2014 W L 4463142, at *2 (Del. Sept. 10, 2014) (quoting Kurzmann , 903 A.2d at 714). See also Scannapieco , 2016 WL 3450022, at *2 (quoting Ward , 567 A.2d at 1297) (“However, a sentencing court abuses its discretion if it sentences on the basis of inaccurate or

unr eliable information.”); Mayes , 604 A.2d at 843 (“Thus, in reviewing a sentence within statutory limits, this Court will not find error of law or abuse of discretion unless it is clear from the record below that a sentence has been imposed on the basis of d emonstrably false information or information lacking minimal indicium of reliability.”). 12 Brochu v. State , 2016 WL 690650, at *4 (Del. Feb. 19, 2016) (citing Mayes , 604 A.2d at 845); Nastatos , 2014 WL 1512887, at *4 (citing Dennis v. State , 2013 WL 17498 07, at *3 (Del. Apr. 23, 2013)); Kurzmann , 2008 WL 2461804, at *1. 13 Mayes , 604 A.2d at 845 (citing Gaines , 571 A.2d at 766

– 67 ). See also Brochu , 2016 WL 690650, at *4 ; Mitchell v. State , 2015 WL 7575022, at *2 (Del. Nov. 24, 2015); Vanderhoeven v. Stat e , 2009 WL 1940723, at *4 (Del. July 7, 2009); Siple , 701 A.2d at 83 (Del. 1997). 14 The combined maximum penalty for the July 16 and August 4 Shoplif ting convictions is two years. See 11 Del. C. § 840(d). The Trial Court imposed a sentence of nine months on Defendant. 15 See Brochu , 2016 WL 690659, at *4 (“It is well

- settled that a deviation from the voluntary and

non

- binding sentencing guidelines is not a basis to vacate a sentence that is within statutory8

C

. Defendant’s Sentence W as N ot an Abuse of Discretion Because the Trial Court Made an Appropriate Determination That Defendant Was Not Amenable to Community

- based Supervision and Sentenced Defendant Within Statutory Limit s . Defendant argues that the VOP Sentencing Order constitutes an abuse of

discretion because the sentence was based solely upon a misinterpretati on of
Defendant’s criminal history . Specifically, Defendant asserts that the Trial Court

sentenced Defendant under the mistaken belief that Defendant violated his
probation eight times where Defendant had only violated once

. 16 Moreover,
Defendant argues t hat the Trial Court improperly failed to articulate the
aggravating circumstances that supported a deviation from the SENTAC

Guidelines. Finally , Defendant contends that the Trial Court’s failure to include
substance abuse treatment in its sentencing orde r also constitutes an abuse of

discretion.

limits.”); Dennis , 2013 WL 1749807, at *3 (citing Benge v. State , 2004 WL 2743431, at *1 (Del. Nov. 12, 2004)) (“SENTAC guidelines are voluntary and nonbinding and do not provide a basis for appeal.”); Vessels v. State , 2009 WL 4847619, at *1 (quoting Mayes , 604 A.2d at 845) (“The SENTAC guidelines are vo luntary and non

- binding, and they too do not provide ‘any legal or constitutional right to appeal . . . a statutorily authorized sentence.’”); Kurzmann , 2008 WL 2461804, at *1 (citing Ward , 567 A.2d at 1297) (“It is well

- settled that the SENTAC guidelines are voluntary and non

- binding and, therefore, do not provide an independent basis for a claim of an illegal sentence.”); Siple , 701 A.2d at 83 (citing Gaines , 571 A.2d at 767) (“At the present time, there is no constitutional or statutory right in Delaware to appeal a criminal punishment on the sole basis that it deviates from the SENTAC sentencing guidelines.”). 16 “THE COURT: But on the probation for the [July 16 Shoplifting], you’ve been violated: one, two, three, four, five, six, seven

– seven times. Th is makes your eighth violation.” State v. Durham , I

. D . Nos. 1507019715 & 1508002923, at 6 (Del. Com. Pl. Apr. 8, 2016) (TRANSCRIPT).9

The record in this case reflects that the VOP Sentencing Order was not based
on impermissible or unreliable factual predicates

. 17 Instead, the Trial Court based

its decision on Defendant’s extensive criminal history and repeated disregard for

the terms of his probation. Defendant does not demonstrate that the T rial Court

failed to consider relevant information
, or maintained a “preconceived bias” in

imposing its sentence

. 18 To the contrary, the Trial Court ap propriately considered

reliable information pertaining to Defendant’s character and criminal conduct that

exten d ed beyond Defendant’s Shoplifting convictions. 19

T he United States Supreme Court has explained that probation is a privilege,
not a right, “des igned to provide a period of grace in order to aid the rehabilitation
of a penitent offender; to take advantage of an opportunity for reformation.” 20 The

Trial Court permissibly exercised its significant “flexibility in administration” in
deciding to revoke Defendant’s probation based on a pattern of disregard for
authority and the law

. 21

Furthermore
, while Defendant may need substance abuse treatment, the Trial
Court gave Defendant the opportunity to avoid incarceration and receive trea tment
in the community during his probationary term. Moreover, nine months at Level V

17 See Hickman , 2014 WL 4463142, at *2 (quoting Kurzmann , 903 A.2d at 714). 18 Weston , 832 A.2d at 746. 19 See Siple , 701 A.2 d at 85. 20 Burns v. United States , 287 U.S. 216, 220 (1932). 21 Id.10

is not enough time to be evaluated for and complete an in

- patient substance abuse
treatment program at Level V supervision

. Whether or not to require substance

abuse tr eatment as a sentencing condition is well within the sound discretion of the

Trial Court.

As to Defendant’s contention that the Trial Court failed to explicitly

articulate applicable aggravating circumstances on the record , the Delaware

Supreme Court has declined to hold that a sentencing court’s failure to make a
record of its reasons for departing from the SENTAC Guidelines constitutes

reversible error

. 22 The T rial Court permissibly elected to provide significant
weight to Defendant’s convictions and vio lations of probation

. 23 “Repetitive
criminal conduct is a venerable basis in our criminal justice system for an

22 See, e.g.
, Brochu , 2016 WL 690650, at *5 (“To the extent Brochu argues that the Superior Court violated a sentencing guideline because the court failed to state the aggravating factor ‘for the record’ during the sentencing hearing, his claim is without merit.”); Mitchell , 2015 WL 7575022, at *2 (citing Mayes , 604 A.2d at 845) (“In addition, this Court has rejected the argument that a sentencing court’s failure to make a record of its reasons for departing from SENTAC Guidelines constitutes reversible error.”); Taylor v. State , 28 A.3d 399, 410 (Del. 2011) (finding that a judge’s failure to expressly discuss mitigating factors prior to imposing a death sentence did not automatically render the sentence arbitrary or capricious, and that requiring such an approach would reflect a preference for form over substance); Cruz v . State
, 990 A.2d 409, 417 (Del. 2010) (finding that a judge’s failure to expressly articulate the reasons for departing from the SENTAC

- suggested sentence on the record did not suggest that the sentence was imposed with a closed mind); Moncavage v. State
, 2010 WL 4108832, at *2 (Del. Oct. 19, 2010) (“Finally, the sentence is appropriate and the judge did not need to articulate aggravating factors verbally at the sentencing hearing.”); Denston v. State , 2008 WL 2752287, at *1 (Del. July 16, 2008) (finding t hat a defendant has no right to appeal a statutorily

- authorized sentence on the grounds that the sentencing court did not explicitly articulate its reasons for departing from the SENTAC guidelines); Mayes , 604 A.2d at 846 (finding that the court’s failure to comply with 11 Del. C. § 4204(m) by identifying aggravating factors justifying the sentence imposed cannot be reasonably construed as a mandate or basis for reversible error). 23 See Mitchell , 2015 WL 7575022, at *2.11

enhanced punishment within the statutory range set for the specific conviction at

issue.” 24 It was within the Trial Court’s broad discretion to consider Defendant’s

criminal history in crafting a sentence for the violations of probation.

CONCLUSION

The record does not indicate that the VOP Sentencing Order was based upon
demonstrably false information, judicial vindictiveness, or a closed mind. The
transcript of the April 8 VOP Hearing reveals that the Trial Court permissibly

exercised its discretion in crafting a sentence based upon Defendant’s criminal
history and repeated violations of probation. Defendant’s sentence is within the

statutorily prescribed limitations, consistent with the recommendations of
Defendant’s supervising probation officer, and appropriately reflects Defendant’s
lack of amenability to community

- based supervision. Accordingly, it was within

the Trial Court’s discretion t o revoke Defendant’s probation and impose a sentence

that deviated from the SENTAC Guidelines

. 25 Defendant does not demonstrate
vindictive or arbitrary action by his sentencing judge. 26 Therefore, the appeal does

not present meritorious grounds for relief

.

24 Siple , 701 A.2d at 85 (emphasis in original). 25 See Cruz , 990 A.2d at 416. 26 See Francis v. State , 2006 WL 4459527, at *2 (Del. Dec. 22, 2006).12

NOW, THEREFORE, this 3 rd day of November, 2016, the April 8, 2016
VOP Sentencing Order by the Court of Common Pleas is hereby AFFIRMED.

IT IS SO ORDERED. 

# Andrea L. Rocanelli

___________________________________ The Honorable Andrea L. Rocanelli