IN THE SUPREME COURT OF THE STATE OF DELAWARE

TREY M. MILLER , Defendant Below, Appellant,

v. STATE OF DELAWARE , Plaintiff Below, Appellee. § § § § § § § § § § § No. 241 , 20 18
Court Below: Superior Court of the State of Delaware
I.D. Nos

. 1203015202 (N ) and

1208012177 (N) (Consolidated)

Submitted: February 13 , 20 19 Decided: April 18 , 2019
Before STRINE , Chief Justice; VALIHURA and VAUGHN , Justices. O R D E R On this 18 th day of April 2019, u pon consideration of the parties’ briefs, oral argument, and the record of the case, it appears that: (1) The a ppe llant, Trey M. Miller, appeals the Superior Court ’s denial of
his motion to modify a sentence he received for violating the terms of his probation.
O n appeal, he contends that the sentence imposed was the result of a closed mind , judicial vindictiveness , or b ias on the part of the sentencing judge. He urges us to
vacate his sentence and remand for resentencing

. (2) At the violation of probation hearing, the State recommended that
Mill er be sentenced to one year at Level V with no probation to follow. In its answering brief on appeal, the State calculates that the presumptive sentence under2

the Delaware Sentencing Accountability Commission’s sentencing guidelines was three years and th ree months at Level V. The sentence imposed by the court , however, was eight years of unsuspended Level V ti me, followed by probation.
This sentence significantly exceeded both the State’s recommendation and the sentencing guidelines. In addition to arg uing that the sentence was the result of a closed mind, judicial vindictiveness , or bias on the part of the judge, Miller contends
that the judge was required , and failed , to (1) consider Miller’s character and the nature of his probation violations and (2) give a sufficient explanation for imposing a penalty more severe than the penalty recommended by the State or the g uidelines

. (3) Because Miller’s sentence is within the statutory limits and because Miller fails to point to any evidence of a closed mindedn ess , judicial vindictiveness , or bias on the part of the judge , we have concluded that the judgment of the Superior Court should be affirmed. It was within the Superior Court’s discretion to impose a sentence within the statutory limits, and the court gav e legitimate reasons for imposing a harsher sentence than the sentence recommended by the State or the guidelines. (4) On March 5, 2013, Miller pleaded guilty to Robbery in the Second Degree, Burglary in the Second Degree, Theft over $1 , 500, and Conspiracy in the
Second Degree. He was sentenced to five years at Level V, suspended after two years for two years at Level III on the robbery conviction. For the burglary3

conviction, he was sentenced to eight years at Level V, suspended after one year for two years at Level III. For the theft conviction, he was sentenced to two years at Level V, suspended for twelve months at Level III. And for the conspiracy conviction, he was sentenced to two years at Level V, suspended for twelve months

at Level III. (5) O n October 14, 2014, the Superior Court reviewed Miller’s sentence, and he was released from Level V and began serving a period of Level III probation. Following his release , Miller violated his probation four times and failed to appear
in the Superior Court on several occasions. On January 6, 2015, the Superior Court

se ntenced Miller for his first violation of probation to six months of unsuspended Level V time followed by probation. On April 26, 2016, the court sen tenced Miller
for his seco nd violation of probation to a probationary term without any unsuspended
Level V time. As for the other violations, Miller f ailed to appear at violation of probation hearings scheduled for September 2016, November 2016, January 2017, April 2017, August 2017, and February 2018. (6) On March 6, 2018, at the violation of probation hearing that led to this appeal , Miller admitted and the Superior Court found that he violated his probation by absconding from probation and failing to report for appointments at the Treatment
Access Ce nter

. At the hearing, the court heard from the State, Miller’s counsel,
and Miller himself. Miller’s probation officer recommended that Miller be4

sentenced to a total of one year at Level V and that he then be discharged from probation as unimproved. Mil ler presented mitigating circumstances for the court
to consider. He explained that during the period of time when some of the probation violation s occurred, he was grieving the loss of his three

- month

- old daughter, who had passed away in September 2016, and that he had not received any counseling to deal with this. Miller also noted that more recently, he had been working at a mushroom factory and was living with his grandparents , for whom he helped provide care. He asked the court to take into consideration the technical

natur e of his violations, the time he served for the under lying crimes, his drug addiction, which was compounded by the loss of his child, his employment status, and his family support and to consider a sentence of six months at Level V. (7) Following Miller’s remarks , the court made comments and asked Miller some questions. The court noted that Miller did not appear to take probation or

sentenc ing seriously and asked for an explanation as to why “[e]very time bail is posted for him, he does not com e back like he’s supposed to do. ” 1 The court further commented on his family’s ability to post b ail for h im in the past and noted that, when this happened, he did not come back to court as required. The court stated to Miller, “apparently, you disregard the Court and everything th at the Court has to say

1 App. to Appellant’s Opening Br. at A 0 78.5

to you [,] and your family is not able to control you .” 2 The court also noted that Miller appeared to be attempting to “manipulate the Court.” 3 (8) The court then sentenced Miller as follows. As to his robbery conviction, he was sente nced to three years at Level V ; as to his burglary conviction, six years at Level V, suspended after three years for one year of Level IV home
confinement , suspended af ter six months for six months at Level III; as to his theft conviction, two years at level V, suspende d after one year for one year of Level IV
home confinement , su spended after six months for six months at Level I II; and as to
his conspiracy conviction, two years at Level V, suspended after one year f or one year of Level IV home confinement , suspended after six months for six months at
Level III. A ll sentences of c onfinement were set to run conse cutively, thus resulting in a total of eight years of unsuspended Level V confinement. (9) On March 19, 2018, Miller filed a motion for sentence reduction in which he challenged the length of the sentence. Noting its “considera ble discretion over the appropriate grounds for a reduction of sentence ” and Miller’s criminal history, the Superior Court denied Miller’s motion. 4 In denying his motion, the court explained that “his re cord reflects an inability or unwillingness to follow the

2 Id. at A 0 80. 3 Id. 4 Appellant’s Opening Br. Ex. C, at 4 (quoting State v. Lewis , 797 A.2d 1198, 1201 (Del. 2002) (en banc) ).6

rules of probation” and that “it does not appear as though his family network is able to get [him] to abide by the rules of probation or appear on Court dates.” 5 (10) Appellate review of a sentence is limited to wheth er the sentence is within the statutory limits prescribed by the General Assembly and whether it is (1)
b ased on factual predicates that are false, impermissib le, or lack minimal reliability

or (2) the result of a closed mind or judicial vindictiveness or bias

. 6 “When the sentence is within the statutory limits, this Court will not find an abuse of discretion unless it is clear that the sentencing judge relied on impermissible factors or exhibited a closed mind.” 7 Put differently, “a defendant has no lega l or constitutional right to appeal a statutorily authorized sentence simply because it does not conform to the sentencing guidelines established by the Sentencing Accountability Commission.” 8 (11) Miller first argues that the sentence he receive d was the resul t of a
closed mind . “A judge sentences with a closed mind when the sentence is based on a preconceived bias without consideration of the nature of the offense or the character of the defendant.” 9 Apart from pointing out th at the sentencing judge imposed a sentence that was much longer than the one recommended by the State or

5 Id. 6 Cruz v. State , 990 A.2d 409, 416 (Del. 2010) (en banc)

. 7 Weston v. State , 832 A.2d 742, 746 (Del. 2003)

. 8 Mayes v. State , 604 A.2d 839, 845 (Del. 1992). 9 Weston , 832 A.2d at 746.7

called for under the g uidelines and that the judge did not discuss on the record his claimed mitigating factors , Miller fails to point to anything indicating that the judge
had a clos ed mind. Unlike in Osburn v. State , for example, where the sentencing judge expressly refused to hear mitigating evidence, 10 the sentencing judge here
listened to the statements of Miller and his counsel. T o the extent Miller’s argument is that the Superi or Court failed to sufficiently articulate its reasons for departing from the g uidelines, it necessarily fails. Because the g uidelines provide “no basis for appeal,” the sentencing court’s failure to articulate its reasons for imposi ng a sentence in exces s of the g uidelines cannot amount to reversible error. 11 (12) Miller next argues that his sentence was the result of judicial
vindictiveness or bias

. He cites Tramill v. State , where this Court reversed increased sentences following a retrial after a successful appeal from the original
trial because the sentencing court failed to specifically state the reasons fo r the
increases

. 12 The holding of Tramill is inapplicable here. That case involved the
distinct context of an increased sentence of someone convicted o n retrial after a successful appellate attack on his original conviction

. 13 In that situation , United States Supreme Court precedent imposes a presumption of vindictiveness

. 14

10 224 A.2d 52, 53 (Del. 1966). 11 Mayes , 604 A.2d at 846 (quoting Gaines v. State , 571 A.2d 765, 767 (Del. 1990)). 12 425 A.2d 142, 145

- 46 (Del. 1980). 13 Id. at 145. 14 E.g. , North Carolina v . Pearce , 395 U.S. 711 , 725

- 26 (1969), overruled on other grounds by8

Because Miller’s sentence was not imposed in that context, there is no presumption of vindictiveness. Therefore, the strict requirements of Tramill

— that the judge’s reasons for imposing a more severe sentence affirmatively appear in the record and
be base d on conduct occurring after the imposition of the original sentence 15

— do not apply. Moreover, in this case the Superior Court did state the reasons for its sentence: Miller’s apparent disregard for the court’s authority and his inability to comply with th e requirements of his probation. 16 These reasons were based on Miller’s conduct occurring after the imposition of his original sentence. Other than
Tramill , Miller cites to no case supporting his argument that the sentencing judge
acted vindictivel y or wi th bias. (13) In his Reply Brief , Miller argues that the Superior Court was vindictive
because the cour t inquired as to the “back

- up” time for his robbery conviction. Asking how much unserved Level V time remained on the robbery conviction can hardly be considered evidence of judicial vindictiveness. The court likely asked this question to ensure that it would not (as it legally could not) exceed the remaining
Level V time for that sentence

.

Alabama v. Smith , 490 U.S. 794 (1989). 15 425 A.2d at 145. 16 See Cruz , 990 A.2d at 417 (“[G]iven Cruz’s history of violating probation, it was well within the Superior Court’s discretion to revoke his probation and impose a prison sentence, notwithstanding the probation officer’s recommendation to the contrary.” (internal quotation marks omitted)).9

NOW, THEREFORE, IT IS ORDER ED that the judgment of the Superior
Court is AFFIRMED

. BY THE COURT:
/s/ James T. Vaughn, Jr. Justice