           IN THE SUPREME COURT OF THE STATE OF DELAWARE

JAMES B. ELEY,                         §
                                       §      No. 218, 2017
      Defendant Below,                 §
      Appellant,                       §      Court Below–Superior Court of the
                                       §      State of Delaware
      v.                               §
                                       §      Cr. ID No. 0908008289 (S)
STATE OF DELAWARE,                     §
                                       §
      Plaintiff Below,                 §
      Appellee.                        §

                          Submitted: October 13, 2017
                          Decided:   December 21, 2017

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

                                     ORDER

      This 21st day of December 2017, upon consideration of the parties’ briefs and

the Superior Court record, it appears to the Court that:

      (1)    The appellant, James B. Eley, filed this appeal from the sentence

imposed on his second violation of probation (“VOP”). We find no merit to the

appeal and affirm the Superior Court’s judgment.

      (2)    On November 17, 2009, Eley pleaded guilty to criminal offenses and

was sentenced to a total of thirteen years of Level V incarceration suspended after

five years for six months of Level IV Home Confinement followed by five years of

concurrent Level III probation. Eley was adjudged guilty of VOP in January 2016
and was sentenced, on February 18, 2016, to a total of four years and ten months of

Level V incarceration suspended after two years and ten months for six months of

Level IV Home Confinement and two years of concurrent Level III probation.

         (3)     Following his April 27, 2017 guilty plea to a new offense, Eley was

found guilty of VOP and sentenced.1 For the new offense, Eley was declared a

habitual offender and sentenced to two years of Level V incarceration. For the VOP,

Eley was sentenced to a total of four years and ten months of Level V incarceration

suspended for 120 days of Level IV Work Release and one year of Level III

probation. This appeal followed.

         (4)     On appeal from the sentence imposed on his second VOP, Eley asserts

that he has twice served the six months of Level IV Home Confinement that was

originally imposed in 2009 and re-imposed in 2016 on his first VOP. Eley argues

that he should not have to serve any more time at Level IV and that, to the extent the

April 27, 2017 sentence imposed 120 days of Level IV Work Release on his second

VOP, the sentence is illegal. His claim is without merit.

         (5)     Once a VOP is established, the Superior Court is authorized to impose

up to the balance of Level V incarceration remaining on the original sentence, or any

lesser sentence, as long as the defendant is given credit for all Level V time

previously served and the sentence does not exceed the Level V term that a prior


1
    State v. Eley, Del. Super., Cr. ID No. 1704008122.
                                                 2
sentence left suspended.2 Only time spent at Level V or a Level IV VOP Center is

creditable against a VOP sentence.3 In Eley’s case, the VOP sentence imposed on

April 27, 2017, including the 120 days of Level IV Work Release, did not exceed

the maximum sentence allowed by law. Eley was not entitled to credit for any time

he served at Level IV Home Confinement.

       NOW, THEREFORE, IT IS ORDERED that the judgment of the Superior

Court is AFFIRMED.

                                          BY THE COURT:

                                          /s/ Karen L. Valihura
                                          Justice




2
  11 Del. C. § 4334(c) (Supp. 2017); State v. Sloman, 886 A.2d 1257, 1260 (Del. 2005); Gamble
v. State, 728 A.2d 1171, 1172 (Del. 1999).
3
  Gamble v. State, 728 A.2d at 1172.
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