      IN THE SUPERIOR COURT OF 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.
                          PROCEDURAL BACKGROUND

       On August 4, 2015, Defendant James Durham (“Defendant”) was arrested

and charged with Shoplifting1 after stealing electronics from a Boscov’s

department store 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 improvement 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 Shopliftings.

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, suspended for 1 year at Level II

probation. The Court mandated substance abuse evaluation 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.
                                              1
of substance abuse treatment in the community.                   Defendant failed to take

advantage of those opportunities.

       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 an 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 warrant for

Defendant’s arrest after Defendant stole electronics from a Wal-Mart in

Middletown, Delaware (“January 8 Shoplifting”).4 The terms of Defendant’s

probation prohibited Defendant from committing a criminal offense during his

probationary period.




3
  Defendant’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 Shoplifting. 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 issuance 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.
                                               2
      On January 13, 2016, Defendant’s supervising probation officer filed a

report alleging violations 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 violations. 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 level.

      Two days later, on 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 Theft and sentenced

to sixty days incarceration at the Harford County Detention Center in Bel Air,

Maryland. The terms of Defendant’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 filed 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’s


                                         3
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 an uncontested hearing regarding Defendant’s

violations of probation (“April 8 VOP Hearing”). The 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-probation

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 the 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 than

ten prior occasions.

      By Order dated April 8, 2016, Defendant’s original sentence was revoked;

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

conviction; and 3 months at Level V for the August 4 Shoplifting conviction

(“VOP Sentencing Order”). Accordingly, in consideration of Defendant’s history


                                          4
of convictions and probation violations, the Trial Court determined Defendant was

not amenable to community-based supervision and sentenced 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 argues that the Trial Court abused its discretion

by deviating from the Truth in Sentencing Act guidelines established by the

Sentencing Accountability Commission (“SENTAC Guidelines”). Defendant also

contends that the Trial Court misinterpreted Defendant’s criminal 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 Defendant’s sentencing order also

constitutes an abuse of discretion.




                                          5
A.     Standard of Review for Sentencing

       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 falls 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); Kurzmann 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, 2016 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).
                                              6
factual predicates which are false, impermissible, or lack minimal reliability,

judicial vindictiveness or bias, or a closed mind.”11

B.     The Trial Court’s Deviation from SENTAC Guidelines Does Not
       Constitute a Proper Basis for 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 because 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

deviation 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 WL 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
unreliable 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 demonstrably 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 1749807, 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.
State, 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 Shoplifting 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 statutory
                                                  7
C.     Defendant’s Sentence Was Not 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 Limits.

        Defendant argues that the VOP Sentencing Order constitutes an abuse of

discretion because the sentence was based solely upon a misinterpretation 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 that 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 order 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 voluntary 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. This makes your eighth violation.” State v.
Durham, I.D. Nos. 1507019715 & 1508002923, at 6 (Del. Com. Pl. Apr. 8, 2016)
(TRANSCRIPT).
                                                8
      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 Trial Court

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

imposing its sentence.18 To the contrary, the Trial Court appropriately considered

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

extended beyond Defendant’s Shoplifting convictions.19

      The United States Supreme Court has explained that probation is a privilege,

not a right, “designed 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 treatment

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.2d at 85.
20
   Burns v. United States, 287 U.S. 216, 220 (1932).
21
   Id.
                                            9
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 treatment 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 Trial Court permissibly elected to provide significant

weight to Defendant’s convictions and violations 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 that 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.
                                                10
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 to 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).
                                              11
     NOW, THEREFORE, this 3rd 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




                                 12
