IN THE SUPREME COURT OF THE STATE OF DELAWARE

THOMAS WHALEY
, Defendant Below, Appellant,

v.
STATE OF DELAWARE,
Plaintiff Below, Appellee. § § § No. 492 , 2017 § § Court Below

— Superior Court § of the State of Delaware § § Cr. ID No. 1411016461A ( S ) § § §

Submitted: January 24, 2018 Decided: February 26 , 2018

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

O R D E R

T he appellant’s opening brief, the appellee’s motion to affirm, and the record

below reflect that:
(1) The appellant, Thomas Whaley, filed this appeal from the Superior
Court’s denial of his motion for correction of an illegal sentence . The State of
Delaware has filed a motion to affirm the Superior Court’s judgment on the ground

that it is clear on the face o f Whaley’s opening brief that his appeal is without merit.
We agree and affirm.
(2) On January 8, 2016
, Whaley pled guilty to one count of Disregarding
an Officer’s Signal an d Attempted Criminal Trespass in the First Degree . The
Superior Court sentenced Whaley as follows: (i) for Disregarding an Officer’s2

Signal, thirty days of Level V incarceration, with credit for thirteen days previously

served ; and (ii) for Attempted Criminal Trespass in the First Degree, one year of

Level V incarceration, suspended f or one year of Level II probation

. Whaley did
not appeal the Superior Court’s judgment.
(3) In March 2016 , Whaley was charged with his first VOP. On April 8,

2016 , the Superior Court found that Whaley had violated his probation. The
Superior Court sentenced Whaley to one year of Level V incarceration, with credit
for fifteen days previously served, suspended for one year of Level III probation for
Attempted Criminal Trespass in the First Degree

. In June 2016, a capias was issued
for another VOP by Whaley. The capias was returned in May 2017. On May 25,
2017, the Superior Court found that Whaley had violated his probation and

sentenced him , effective May 25, 2017, to eleven months of Level V incarceration,
suspended for six months at the Level IV V OP Center.
(4) In September 2017, Whal ey was charged with a third VOP based on his
failure to comply with the rules and regulations of the Sussex VOP Center. The
charges arose from a fight with another inmate. On October 6, 2017, the Superior

Court found t hat Whaley had violated his probation. The Superior Court sentenced
Whaley, effective October 6, 2017, to six months of Level V incarceration.3

(5) On October 30, 2017 , Whaley filed a motion for correction of illegal

sentence. The Superior found the motion without merit and denied it. This appeal

followed.
(6) In his opening brief, Whaley argues
, as he did below
, that his VOP
sentence violated statutory limitations and sentencing guidelines

. We review the
Superior Court’ s denial o f a motion for correction of sentence for abuse of discretion,
although questions of law are reviewed de novo

. 1 A sentence is illegal if it exceeds
the statutory limits, violates double jeopardy, is ambiguous or internally
contradictory, omits a term requ ired to be imposed by statute, or is not authorized
by the judgment of conviction. 2 Whaley’s VOP sentence is not illegal

. (7) Once Whaley committed a VOP, the Superior Court could impose any
period of incarceration up to and including the balance of the Level V time
remaining on his sentence. 3 Whaley was sentenced to eleven months of Level V
incarceration, suspended for six months of Level IV VOP Center for hi s second
VOP on May 25, 2017. At the time Whaley was sentenced for his third VOP on

October 6, 2017, he had served less than five months of the eleven months imposed
on May 2 5 , 2017. 4 The six

- month Level V sentence imposed on October 6, 2017

1 Weber v. State , 2015 WL 2329160, at *1 (Del. May 12, 2015). 2 Brittingham v. State , 705 A.2d 577, 578 (Del. 1998). 3 11 Del. C. § 4334(c); Pavulak v. State , 880 A.2d 1044, 1046 (Del. 2005). 4 The time Whaley spent at the Level IV VOP Center entitled him to Level V credit against his sentence. Spencer v. State , 2014 WL 1258301, at *2 (Del. Mar. 25, 2014).4

did not exceed the Level V time remaining o n Whaley’s May 25, 2017 VOP

sentence. As to Whaley’s claim that his VOP sentence exceeded the Sentencing

Account ability Commission ’s guidelines, “departure from the guidelines is not a
basis to overturn a sentence within the statutory limits. ” 5

NOW, THERE FORE, IT IS ORDERED that the motion to affirm is granted
and the judgment of the Superior Court is AFFIRMED

.

BY THE COURT: /s/ Leo E. Strine, Jr.
Chief Justice

5 Barrett v. State , 2015 WL 4510717, at *2 (cit ing Siple v. State , 701 A.2d 79, 83 (Del. 1997)).