      IN THE SUPREME COURT OF THE STATE OF DELAWARE

VICTOR HACKETT,                        §
                                       §   No. 697, 2015
      Defendant Below,                 §
      Appellant,                       §   Court Below—Superior Court
                                       §   of the State of Delaware
      v.                               §
                                       §   Cr. ID No. 0609019128
STATE OF DELAWARE,                     §
                                       §
      Plaintiff Below,                 §
      Appellee.                        §

                           Submitted: June 2, 2016
                            Decided: July 18, 2016

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

                                  ORDER

      This 18th day of July 2016, upon consideration of the appellant’s

Supreme Court Rule 26(c) brief, the State’s response, and the record below,

it appears to the Court that:

      (1)    The record reflects that, in December 2006, Hackett pled guilty

to Possession with Intent to Deliver Cocaine (“PWIDC”).          In the plea

papers, Hackett acknowledged that the Superior Court was required to

impose no fewer than fifteen years of Level V incarceration for PWIDC.

Hackett also agreed to be sentenced as a habitual offender under 11 Del. C. §

4214(a). In exchange for the plea, the State agreed to drop other charges and

to recommend that the Superior Court impose no more than fifteen years of
Level V incarceration. On February 16, 2007, after declaring Hackett a

habitual offender under Section 4214(a), the Superior Court sentenced

Hackett to twenty years of Level V incarceration, suspended after fifteen

years for five years of Level IV Halfway House In-Patient Substance Abuse,

suspended after nine months for eighteen months of Level III probation.

         (2)     In November 2014, Hackett filed a motion for correction of

sentence under Superior Court Criminal Rule 35(a). Hackett claimed that

the suspended portion of his sentence violated Section 4214(a). Hackett

asked the Superior Court to correct his sentence and impose fifteen years of

Level V incarceration with no probation to follow. The Superior Court

construed the motion as a motion for reduction of sentence under Rule 35(b)

and denied the motion as repetitive and untimely filed.

         (3)     On appeal, this Court held that the Superior Court abused its

discretion when it denied Hackett’s motion for correction of sentence as

untimely and repetitive under Rule 35(b) because a motion to correct an

illegal sentence can be filed at any time under Rule 35(a).1 We agreed with

the parties that the suspended portion of Hackett’s sentence violated Section

4214(a), which provides that any sentence of less than life imprisonment




1
    Hackett v. State, 2015 WL 4463789, at *2 (Del. July 21, 2015).


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shall not be subject to suspension, and had to be corrected.2 We agreed with

the State “that a corrected sentence imposing fifteen years at Level V under

Section 4214(a) followed by nine months at Level IV halfway house

inpatient substance abuse treatment and eighteen months at Level III

probation would be consistent with the original sentencing plan and comply

with Section 4214(a) and Section 4204(l).”3 This Court vacated Hackett’s

sentence and directed the Superior Court to conduct a new sentencing

hearing.4

        (4)   Counsel was appointed to represent Hackett for his sentencing.

The Superior Court held a new sentencing hearing on December 4, 2015.

The Superior Court sentenced Hackett, effective December 4, 2006, to

fifteen years of Level V incarceration, followed by nine months of Level IV

Halfway House In-Patient Substance Abuse and eighteen months of Level

III probation. This appeal followed.

        (5)   On appeal, Hackett’s counsel (“Counsel”) filed a brief and a

motion to withdraw pursuant to Supreme Court Rule 26(c) (“Rule 26(c)”).

Counsel asserts that, based upon a complete and careful examination of the

record, there are no arguably appealable issues. Counsel informed Hackett


2
  Id.
3
  Id.
4
  Id.


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of the provisions of Rule 26(c) and provided Hackett with a copy of the

motion to withdraw and the accompanying brief. Counsel also informed

Hackett of his right to identify any points he wished this Court to consider

on appeal. Hackett has raised several issues for this Court’s consideration.

The State has responded to the issues raised by Hackett and moved to affirm

the Superior Court’s judgment.

       (6)    When reviewing a motion to withdraw and an accompanying

brief, this Court must: (i) be satisfied that defense counsel has made a

conscientious examination of the record and the law for arguable claims; and

(ii) conduct its own review of the record and determine whether the appeal is

so totally devoid of at least arguably appealable issues that it can be decided

without an adversary presentation.5

       (7)    Hackett first argues that a sentence imposed under Section

4214(a) cannot include any probation. This argument is contrary to Section

4204(l), which requires that a court impose at least six months of Level IV,

Level III, or Level II time whenever it imposes Level V time of one year or

more in order to aid a prisoner’s transition back into society.6 Thus, as we




5
  Penson v. Ohio, 488 U.S. 75, 83 (1988); Leacock v. State, 690 A.2d 926, 927-28 (Del.
1996).
6
  11 Del. C. § 4204(l).


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recognized in our previous decision regarding Hackett’s sentence, the

corrected sentence must include transition time under Section 4204(l).7

       (8)    Hackett next argues that even if transition time is permissible,

that time cannot exceed six months. This argument is also without merit.

Section 4204(l) requires “a period of custodial supervision at either Level

IV, III or II for a period of not less than 6 months to facilitate the transition

of the individual back into society.”8 Section 4204(l) sets a minimum, not a

maximum, period of transition time.9

       (9)    Hackett next appears to claim that six months of Level V time

should be deducted from his sentence because the remand and new

sentencing hearing led to changes in his housing security classification.

Hackett cites no authority in support of this argument. “[T]he transfer of

prisoners from one housing unit to another falls within the ambit of the

discretionary duties of prison officials.”10         Hackett has not shown any

entitlement to a six month reduction in his Level V time.



7
   Hackett v. State, 2015 WL 4463789, at *2. See also Carpenter v. State, 2015 WL
3454595, at *1 (Del. May 28, 2015) (holding ten year Level V sentence under Section
4214(a) followed by six months at Level IV and six months at Level III was not illegal).
8
  11 Del. C. § 4204(l) (emphasis added).
9
   The transition period under Section 4204(l) cannot exceed six months when a
sentencing court imposes the maximum sentence (Harris v. State, 2014 WL 791855 (Del.
Feb. 25, 2014)), but in this case the Superior Court imposed less than the maximum
sentence of life imprisonment under Section 4214(a).
10
   Desmond v. Phillips, 2012 WL 424891, at *1 (Del. Feb. 8, 2012).


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          (10) Finally, Hackett argues that this Court should address what will

happen if he commits a violation of probation because no Level V time will

remain on his sentence. The Superior Court declined to address this issue,

concluding that it could be addressed when, and if, it ever arose. We agree

with the Superior Court.            “Delaware courts do not render advisory or

hypothetical opinions.”11

          (11) This Court has reviewed the record carefully and has concluded

that Hackett’s appeal is wholly without merit and devoid of any arguably

appealable issue.          We also are satisfied that Counsel has made a

conscientious effort to examine the record and the law and has properly

determined that Hackett could not raise a meritorious claim in this appeal.

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

Superior Court is AFFIRMED. The motion to withdraw is moot.

                                              BY THE COURT:


                                              /s/ Collins J. Seitz, Jr.
                                                      Justice




11
     XI Specialty Ins. Co. v. WMI Liquidating Trust, 93 A.3d 1208, 1217 (Del. 2014).


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