             IN THE SUPREME COURT OF THE STATE OF DELAWARE

TYRELL M. WATERS,                      §
                                       §
        Defendant Below,               § No. 285, 2016
        Appellant,                     §
                                       § Court Below—Superior Court
        v.                             § of the State of Delaware
                                       §
STATE OF DELAWARE,                     § Cr. ID Nos. 1412011482,
                                       § 1412011591
        Plaintiff Below,               §
        Appellee.                      §

                           Submitted: August 25, 2016
                           Decided:   October 24, 2016

Before HOLLAND, VALIHURA, and VAUGHN, Justices.

                                     ORDER

        This 24th day of October 2016, upon consideration of the appellant’s opening

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

that:

        (1)    The appellant, Tyrell M. Waters, filed this appeal from the Superior

Court’s May 12, 2016 order sentencing him for a violation of probation (“VOP”).

The State of Delaware has moved to affirm the Superior Court’s judgment on the

ground that it is manifest on the face of Waters’ opening brief that the appeal is

without merit. We agree and affirm.

        (2)    The record reflects that, on June 3, 2015, Waters pled guilty to

Possession of Cocaine and Conspiracy in the Third Degree. Waters was sentenced
as follows: (i) for Possession of Cocaine, six months of Level V incarceration, with

credit for six days previously served, suspended for one year of Level II probation;

and (ii) for Conspiracy in the Third Degree, one year of Level V incarceration,

suspended for one year of Level II probation. Waters did not appeal the Superior

Court’s judgment.

      (3)   On February 2, 2016 a capias was issued for Waters’ VOP. The VOP

report alleged that Waters had violated his probation by committing new crimes

and by failing to keep a scheduled appointment with his probation officer. The

report recommended sentencing Waters to one year of Level V incarceration

suspended for one year of Level III probation for Possession of Cocaine and six

months of Level V incarceration suspended for thirty days of Level IV VOP Center

for Conspiracy in the Third Degree.

      (4)   At the VOP hearing, Waters’ counsel admitted that he was arrested on

new charges and failed to report to probation as directed. Waters’ counsel asked

that he be sentenced to thirty days of Level V incarceration instead of Level IV

VOP Center because his new, open charges meant he could not go to Level IV

VOP. The Superior Court found that Waters violated his probation. The Superior

Court discharged Waters as unimproved on his Possession of Cocaine conviction

and sentenced him to six months of Level V on his Conspiracy in the Third Degree

conviction. This appeal followed.


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         (5)     In his opening brief, Waters does not dispute that he violated his

probation. Instead, Waters claims that he signed a guilty plea agreement providing

for thirty days of Level V incarceration, he did not receive credit for time he served

between April 25, 2016 and his May 12, 2016 VOP hearing, the Superior Court

judge was biased, the Superior Court judge failed to make his sentences

concurrent, and his counsel was ineffective. Waters appears to confuse guilty plea

procedures with VOP procedures. The record reflects that Waters signed a plea

agreement for his Possession of Cocaine and Conspiracy in the Third Degree

convictions in 2015, but does not reflect that Waters signed a plea agreement for

his 2016 VOP hearing. Waters’ claims relating to a signed plea agreement for his

VOP are without merit.

         (6)     As to Waters’ sentencing claims, our review of a sentence generally

ends once we determine that the sentence is within the statutory limits prescribed

by the legislature.1 Once Waters 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.2 The Level V sentenced imposed for Waters’

VOP —six months of Level V incarceration—did not exceed the almost eighteen

months of Level V time previously suspended and was within statutory limits. The

VOP sentencing order reduced Waters’ Level V time to six months and stated that

1
    Mayes v. State, 604 A.2d 839, 842 (Del. 1992).
2
    11 Del. C. § 4334(c); Pavulak v. State, 880 A.2d 1044, 1046 (Del. 2005).
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the sentence took into consideration all time previously served. The reduction in

Level V time more than accounted for any time Waters served between April 25,

2016 and his May 12, 2016.

      (7)    When the sentence is within the statutory limits, as it is here, this

Court will not find an abuse of discretion unless the sentence “is based on factual

predicates which are false, impermissible, or lack minimal reliability, judicial

vindictiveness or bias, or a closed mind.”3         There is nothing in the record to

support Waters’ claim that the Superior Court judge was biased in sentencing him.

To the extent Waters complains that the Superior Court did not accept the

sentencing recommendation in the VOP report, the Superior Court was not

obligated to accept the sentencing recommendation of Waters’ probation officer.4

      (8)    As to Waters’ contention that the Superior Court should have made

his VOP sentence for Conspiracy in the Third Degree concurrent, he fails to

identify the sentence or sentences that the VOP sentence should have run

concurrently with. Waters also ignores that imposition of a concurrent rather than

consecutive sentence is within the discretion of the Superior Court.5 Finally, we

decline to consider Waters’ ineffective assistance of counsel claims for the first



3
  Weston v. State, 832 A.2d 742, 746 (Del. 2003).
4
  Lancaster v. State, 2010 WL 4851829, at *1 (Del. Nov. 29, 2010).
5
  Fountain v. State, 139 A.3d 837, 840-41 (Del. 2016) (describing amendment of 13 Del. C. §
3901(d) to give judges discretion to impose concurrent or consecutive sentences).

                                            4
time on direct appeal.6 Having carefully reviewed the parties’ positions and the

record below, we conclude that the Superior Court did not err in sentencing Waters

for his VOP.

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

GRANTED and the judgment of the Superior Court is AFFIRMED.



                                        BY THE COURT:

                                        /s/ Karen L. Valihura
                                               Justice




6
 Watson v. State, 2013 WL 5969065, at *2 (Del. Nov. 6, 2013); Desmond v. State, 654 A.2d
821, 829 (Del. 1994).
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