IN TI-lE SUPREME COURT OF TI-[E STATE OF DELAWARE

JAMIL BIDDLE, §
§ No. 239, 2016
Defendant Below, §
Appellant, § Court Below_Superior Court of the
§ State of Delaware
v. §
§ Cr. ID No. 1010010028
STATE OF DELAWARE, §
§
Plaintiff Below, §
Appellee. §

Submitted: January 5, 2017
Decided: April 12, 2017

Before VALIHURA, VAUGHN, and SEITZ, Justices.
0 R D E R

This 12th day of April 2017, upon consideration of the brief under Supreme
Court Rule 26(c) and motion to withdraw filed by the appellant’s counsel, the State’s
response, the record on appeal, and the record in a case related to the appeal,' it
appears to the Court that:

(1) In 2011, the appellant, Jamil Biddle, pled guilty to robbery in the first
degree and Was sentenced to ten years in prison suspended after three years for two

years of probation. As part of the sentence, the Superior Court imposed a special

 

' To the extent necessary as reflected in this Order, the Court has taken judicial notice of the
proceedings in Slare v. Biddle, Del. Super., Cr. ID No. 1411015832.

zero tolerance condition for a violation of probation (“VOP”). On April 26, 2016,
Biddle was found guilty of VOP and Was sentenced to three years of unsuspended
incarceration followed by six months of work release and one year of probation.
This appeal followed.

(2) On appeal, Biddle’s counsel has filed a no-merit brief and a motion to
withdraw under Supreme Court Rule 26(c). Counsel asserts that, based upon a
complete and careful examination of the record, there are no arguably appealable
issues. Counsel provided Biddle with the motion to withdraw and brief in draft form
and advised him that he could submit written points for the Court’s consideration
Biddle submitted points that are included in the brief. The State has filed a response
to the points and has moved to affirm the Superior Court’sjudgment.

(3) When reviewing a motion to Withdraw and an accompanying brief
under Rule 26(c), this Court must be satisfied that the appellant’s counsel has made
a conscientious examination of the record and the law for arguable claims.2 Also,
the Court must conduct its own review of the record and determine whether “the
appeal is indeed so frivolous that it may be decided without an adversary

presentation.”3

 

2 Penson v. Ohio, 488 U.S. 75, 83 (1988); McCoy v. Court oprpeals of Wisconsin, 486 U.S. 429,
442 (1988); Anders v. California, 386 U.S. 738, 744 (1967).

3 Penson v. Ohio, 488 U.S. at 82.

(4) Biddle was charged with VOP following his 2014 arrest and indictment
on charges that included possession of a gun and possession of ammunition4
Biddle’s trial on those charges was delayed until February 2016 because the State
did not adhere to its discovery deadlines with respect to DNA testing. As a
consequence for the delay, the Superior Court ruled that when the DNA testing was
completed, only the defense would be allowed to use the DNA report at trial. When
the DNA test results turned out to be inculpatory, however, the defense chose not to
introduce the report at trial. At the conclusion of trial, the jury acquitted Biddle of
the gun and ammunition charges and convicted him on the other charges. On April
26, 2016, the Superior Court sentenced Biddle to a total of three months of
unsuspended incarceration followed by one year of probation.

(5) After sentencing, the Superior Court held a VOP hearing, found Biddle
guilty, and imposed the three-year sentence. When imposing the sentence, the Judge
addressed Biddle as follows:

All right. Well, now I - I’ll note a couple of things, Mr. Biddle: You’re

- unfortunately, you know, the pattern of your conduct shows nothing

other than the fact that you’re not amenable to community supervision.

I sat through your trial. I saw how you were fleeing from the police

and disregarding their lawful orders for you to pull over, going faster

than 90 miles an hour, speeding through an apartment complex where

you only crashed into somebody’s car. You know, there’s certainly -

there was certainly some credible evidence presented at trial that you

possessed a handgun, although the Court respects the fact that the jury
did not find beyond a reasonable [doubt], based, on the evidence that

 

4 Supra note l.

was put forward, that you possessed a handgun. But, you know, the

fact of the matter is, your DNA was on that gun. And, you know, this

is happening six months after you were released from a three-year

robbery sentence, a sentence for which [the court] put a zero tolerance

[for] a violation of probation condition on your sentence because of

your prior issues.5

(6) On appeal, Biddle claims that the VOP sentence is illegal because it
was based on the DNA report that was ruled inadmissible at trial and therefore was
unreliable. Biddle further contends that the VOP sentence violated principles of
Double Jeopardy and the Eighth Amendment’s prohibition against cruel and unusual
punishment, and that the sentence exceeded the Sentencing Accountability
Commission’s (SENTAC) guidelines Finally, Biddle contends that the Judge
imposed the VOP sentence with a closed mind. None of Biddle’s claims has merit.

(7) The Superior Court may properly consider reliable information when
determining an appropriate sentence, including “information regarding other,
unproven crimes.”6 In this case, the Superior Court did not rule that the DNA report
was inadmissible at trial, only that the State was precluded from using the report.
There is no indication that the report was inaccurate or unreliable.

(8) The VOP sentence did not violate principles of Double Jeopardy and

the Eighth Amendment. The sentence was neither excessive nor grossly

 

5 VOP Tr. at 50-51 (Apri126, 2016).
6 Walsh v. Slate, 2012 WL 6018707, at *2 (Del. Dec. 3, 2012) (quoting Mayes v. State, 604 A.2d
839, 842 (Del. 1992)).

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disproportionate"' Indeed, the Superior Court could have imposed a tougher
sentence by requiring Biddle to serve the entire length of the suspended prison term.8

(9) The Double Jeopardy Clause protects against multiple prosecutions and
punishments for the same offense.9 lt is not implicated when conduct that led to a
conviction and sentence on new criminal charges also formed the basis for a VOP
finding of guilt and VOP sentence.'° Furthermore, it is well-settled that the
SENTAC guidelines are non-binding and do not provide a basis for appeal of a
sentence that is within the statutory authorized limits, as in this case.ll

(10) When imposing the VOP sentence, the Superior Court properly
considered Biddle’s difficulty complying with the conditions of community
supervision, the circumstances leading to his arrest and indictment in 2014, and the
DNA report that supported a finding that Biddle possessed a gun when he was
arrested. “A judge sentences with a closed mind when the sentence is based on a

preconceived bias without consideration of the nature of the offense or the character

 

7 Wallace v. State, 956 A.2d 630, 639 (Del. 2008) (“The Eighth Amendment has been interpreted
to prohibit only punishments that are disproportionate to the crime or are excessive.”)

3 11 Del. C. § 4334(c) (Supp. 2017).

9 Whire v. Smte, 576 A.2d 1322, 1325 (Del. 1990) (citing Um'ted Staies v. Diancesco, 449 U.S.
117, 129 (1980)).

'° Holmes v. State, 2014 WL 3559686, at *3 (Del. July 17, 2014) (citing cases).

" Spee.re v. Siale, 2016 WL 5539887 (Del. Sept. 29, 2016) (citing Siple v. State, 701 A.2d 79, 83
(Del. 1997)).

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of the defendant.”12 In this case, the record does not reflect any evidence of a closed
mind on the part of the sentencingjudge.

(10) In short, Biddle’s acquittal on the gun and ammunition charges did not
preclude the Superior Court from considering the DNA report when determining an
appropriate sentence for the VOP.'~" I-Iaving conducted “a full examination of all the
proceedings” and found “no nonfrivolous issue for appeal,” the Court is satisfied
that Biddle’s counsel made a conscientious effort to examine the record and the law
and properly determined that Biddle could not raise a meritorious claim on appeal.'4

NOW, TI-IEREFORE, IT IS ORDERED that the State’s motion to affirm is
GRANTED. The judgment of the Superior Court is AFFIRMED. The motion to
withdraw is moot.

BY TI-IE COURT:

""7
Amwc /

GLSH.CE

 

'2 Wes!on v. Slate, 832 A.2d 742, 746 (Del. 2003).
'3 Cf Cruz v. State, 990 A.2d 409 (Del. 2010) (af`firming VOP conviction and sentence

notwithstanding probationer’s acquittal of new criminal charges on which VOP was based).
'4 Penson v. Ohio, 488 U.S. 75, 80 (1988).

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