         IN THE SUPREME COURT OF THE STATE OF DELAWARE

 JEREMIAH SMITH,                          §
                                          §
       Defendant Below,                   § No. 27, 2019
       Appellant,                         §
                                          § Court Below—Superior Court
       v.                                 § of the State of Delaware
                                          §
 STATE OF DELAWARE,                       § Cr. ID Nos. 1809003375 (K)
                                          §              1704002420 (K)
       Plaintiff Below,                   §              1205013765 (K)
       Appellee.                          §

                          Submitted: March 21, 2019
                          Decided:   May 2, 2019

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

                                   ORDER

      After consideration of the appellant’s opening brief, the State’s motion to

affirm, and the record on appeal, it appears to the Court that:

      (1)    The appellant, Jeremiah Smith, appeals from the Superior Court’s order

denying his motion for review of a sentence imposed after the court found him in

violation of probation (“VOP”). The State has filed a motion to affirm the Superior

Court’s judgment on the ground that it is manifest on the face of Smith’s opening

brief that the appeal is without merit. We affirm the Superior Court’s judgment.

      (2)    The record reflects that in November 2012 Smith was convicted of

second-degree robbery and sentenced to five years of Level V incarceration,
suspended after one year for probation. He was found in violation of probation in

the robbery case in December 2014, October 2015, and September 2017.

      (3)    In June 2017, Smith was convicted of criminal mischief and sentenced

to one year of Level V incarceration, suspended for probation. Smith was found in

violation of probation in the criminal mischief case in August 2017.

      (4)    In September 2018, Smith was arrested and charged with drug dealing

and related offenses. On September 20, 2018, he pleaded guilty to a single count of

drug dealing. After a VOP hearing on the same date, Smith was found in violation

of probation in the criminal mischief case and sentenced to one year of Level V

incarceration, suspended immediately, with no probation to follow. This was his

second VOP in the criminal mischief case. The record reflects that his defense

counsel informed Smith that, if he wanted to appeal from the decision that he

violated his probation or the sentence imposed, he was required to do so within thirty

days of September 30, 2018, and that his defense counsel would not file an appeal

on his behalf. Smith did not appeal.

      (5)    On October 10, 2018, a VOP report was filed in the robbery case; the

report alleged that Smith was in violation of probation because he had incurred the

new drug-related charges and failed to comply with other conditions of his

probation. After a hearing on November 9, 2018, the Superior Court found Smith

in violation of probation in the robbery case and sentenced him to four years of Level



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V incarceration, suspended after six months for probation, for restitution purposes

only. This was his fourth VOP in the robbery case. The record reflects that his

defense counsel informed Smith that, if he wanted to appeal from the decision that

he violated his probation or the sentence imposed, he was required to do so within

thirty days of November 9, 2018, and that his defense counsel would not file an

appeal on his behalf. Smith did not file an appeal.

       (6)     Instead, on December 13, 2018, Smith filed a motion for review of

sentence; he filed the motion in the robbery case, the criminal mischief case, and the

drug-dealing case. He argued that (i) the procedure by which he was found to have

violated probation in the robbery case violated Superior Court Criminal Rule 32.1

because the State unreasonably delayed bringing him before the court on the VOP;1

(ii) the VOP in the robbery case should have been heard at the same time as the VOP

in the criminal mischief case; and (iii) his “constitutional right to bail” was violated

because he was not given the opportunity to post bail on the VOP in the robbery

case. The Superior Court denied Smith’s motion on the grounds that the sentence

was appropriate for the reasons stated at the time of sentencing and Smith had not




1
  See DEL. SUPER. CT. CRIM. R. 32.1(a) (providing that “[w]henever a person is taken into or held
in custody on the grounds that the person has violated a condition of partial confinement or
probation, the person shall be brought without unreasonable delay before a committing magistrate
or a judge of Superior Court for the purpose of fixing bail and, if not released on bail, shall be
afforded a prompt hearing before a judge of Superior Court on the charge of violation”).


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provided any additional information that would warrant a reduction or modification

of his sentence.

         (7)     On appeal from the Superior Court’s denial of his motion for review of

sentence, Smith challenges the VOP in the robbery case on the grounds that the

procedure by which he was found to have violated probation violated his due process

rights and Superior Court Criminal Rule 32.1. After careful consideration, we find

no merit to Smith’s appeal. On appeal, our review of a sentence generally ends upon

a determination that the sentence is within the statutory limits prescribed by the

legislature.2 In sentencing a defendant for a VOP, the trial court is authorized to

impose any period of incarceration up to and including the balance of the Level V

time remaining to be served on the original sentence.3

         (8)     In the robbery case VOP, the Superior Court found Smith in violation

of probation and sentenced him to four years of Level V incarceration, suspended

after six months for probation, for restitution purposes only. Smith has not argued

that this sentence exceeded the balance of the Level V time remaining to be served

on his sentence in the robbery case. Indeed, Smith does not challenge his sentence

at all. Rather, the thrust of his argument is that he should not have been convicted

of a VOP in the robbery case, because the State brought the VOP charge in that case



2
    Mayes v. State, 604 A.2d 839, 842 (Del. 1992).
3
    11 Del. C. § 4334(c).


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too late and separately from the VOP in the criminal mischief case. That argument

goes to the merit of the VOP conviction, rather than the sentence. Smith’s attempt

to challenge his VOP conviction is untimely.4 He may not use this appeal, from the

denial of a motion for review of sentence, to collaterally attack the merit of his VOP

conviction.5 To the extent Smith wanted to challenge the process by which he was

found in violation of probation, he should have filed a direct appeal from the VOP

order.6

       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/ Collins J. Seitz, Jr.
                                                  Justice




4
  Fisher v. State, 2003 WL 1443050, at *2 (Del. Mar. 19, 2003).
5
  Id.
6
  See Strawley v. State, 2002 WL 86687, at *2 (Del. Jan. 15, 2002) (“Strawley’s attempt to
challenge his underlying probation violation, which was imposed in March 2000 is untimely.
Strawley had an opportunity to appeal from the Superior Court’s VOP adjudication and sentence
but failed to do so. A motion seeking a correction of sentence is not an appropriate means to
challenge alleged errors that occurred at proceedings prior to the imposition of sentence. This
Court will not consider Strawley’s untimely claim.”).


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