IN THE SUPREME COURT OF THE STATE OF DELAWARE

DUSTIN M. WOLFORD, §

§ No. 345, 2016

Defendant Below, §

Appellant, § Court Below

— Superior Court of the

§ State of Delaware

v. §

§ Cr. ID Nos. 1108016428

§ 1209017309

STATE OF DELAWARE, §

§

Plaintiff Below, §

Appellee. §

Submitted: August 23, 2016

Decided: October 25 , 2016

Before HOLLAND

, VALIHURA and VAUGHN , Justices.

O R D E R

This 25 th day of October 2016, upon consideration of the appellant’s open ing

brief, the appellee’s motion to affirm, and the Superior Court record, it appears to

the Court that:

(1) On December 5, 2011, the appellant, Dustin M. Wolford, pled guilty

to Burglary in the Third Degree and was sentenced to three years at Level V,

su spended for probation. On January 7, 2013, Wolford pled guilty to Possession of

Child Pornography and was sentenced to three years at Level V, suspended for

probation. Burglary in the Third Degree and Possession of Child Pornography are2

both class F felo nies. 1 The statutory maximum for a class F felony is three years in

prison

. 2

(2) On June 27, 2014, Wolford was convicted of violation of probation

(“VOP”) and was sentenced, under 11 Del. C. § 4204(k), to a total of four years in

prison, two years for Burglary in the Third Degree (hereinafter “burglary”) and two

years for Possession of Child Pornography (hereinafter “child pornography”)

. It

was Wolford’s fourth VOP in the b urglary case and his second VOP in the c hild

p ornography case. Under § 4204 (k), Wolford is required to serve both two

- year

VOP sentences without any “ form of reduction or diminution of sentence ” such as

good time credits. 3

( 3 ) On May 16, 2016, Wolford filed a motion for correction of sentence

under Superior Court Criminal Rule 35(a). By order dated June 3, 2016, the

Superior Court denied the motion. This appeal followed.

( 4 ) On appeal, observing that 11 Del. C. § 4204(k) can be applied only to

sentences of one year or less or to sentences imposing the statutory maximum

, 4

Wolfo rd contends that the two

- year VOP sentences for b urglary and c hild

1 11 Del. C. § § 824, 1111.

2 11 Del. C. § 4205(b)(6).

3 11 Del. C. § 4204(k) (1)

.

4 See 11 Del. C. § 4204(k) (3) (“The provisions of this subsection shall be applicable only to

sentences of imprisonment at Level V for 1 year or less, or to sentences of imprisonment at Level

V which are equal to the statutory maximum Level V sentence available for the crime or

offense.”)

.3

p ornography in his case do not fit that criteria

. A ccording to Wolford, the Superior

Court must either reduce the two

- year sentences to one year each or remove the

§ 4204(k) restriction from the sentences . Wolford ’s claim is without merit.

( 5 ) As previously noted, Burglary in the Third Degree and Possession of

Child Pornography are both class F felonies for which the maximum penalty is

three years at Level V

. 5 In this case, Wolford w as originally sentenced to three

years at Level V, suspended for probation, for both b urglary and c hild

p ornography. W hen sentencing Wolford on the June 27, 2014 VOP

, the Superior

Court properly applied § 4204(k) to the Level V time remaining on each of those

sentences. 6

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

GRANTED. The judgment of the Superior Court is AFFIRMED.

BY THE COURT:

/s/ Karen L. Valihura

Justice

5 Supra notes 1, 2.

6 See Ingram v. State , 567 A.2d 868, 869 (Del. 1989) (ruling that , on a V OP, the Superior Court

can impose § 4204(k) on the re

- imposition of the original term of imprisonment); see also Owens

v. State , 2013 WL 6536758, at *2 (Del. Dec. 9, 2013) (“Read together, subsections 4204(k)(1)

and (3) allow a trial court to suspend a por tion of the maximum sentence and refuse to award

specified benefits that would effectively diminish the unsuspended portion of the sentence.”).