IN THE SUPREl\/[E COURT OF THE STATE OF DELAWARE

MARK K. WATERS, §
§ No. l49, 2014
Defendant Below, §
Appellant, § Court Below-Superior Court of
§ the State of Delaware in and for
V. § New Castle County
§
STATE OF DELAWARE, §
§
Plaintiff Below, § Cr. ID No. 1007015812
Appellee. §

Submitted: July 25, 2014
Decided: September 25, 2014

Before STRINE, Chief Justice, HOLLAND, and VALIHURA, Justices.
0 R D E R

This 25th day of September 2014, upon consideration of the parties’ briefs
and the Superior Court record, it appears to the Court that:

(l) On March 29, 2011, the appellant, Marl< K. Waters, pled guilty to
AggraVated Menacing, Endangering the Welfare of a Child, and Possession of a
Deadly Weapon by a Person Prohibited. On June 17, 20ll, the Superior Court
sentenced Waters to a total of nine years at Level V, suspended immediately for six
months at Level IV work release followed by eighteen months at Level III in
mental health and substance abuse treatment, followed by decreasing levels of

supervision.

(2) On September l, 2011, less than three months after Waters’
sentencing, the Department of Correction ("DOC") filed an administrative warrant
charging Waters with his first violation of probation ("VOP"). Waters was found
guilty of VOP and was resentenced to a period of incarceration followed by
probation. As special conditions of the sentence, the Superior Court required
mental health treatment at every level of supervision, monitoring for substance
abuse treatment, and "zero tolerance" for noncompliance with treatment.

(3) Thereafter, Waters was found guilty of his second, third and fourth
VOPs in February 2012, November 2012 and April 2013, respectively, and was
resentenced each time to a period of incarceration followed by probation. As
special conditions of each of the sentences, the Superior Court continued to require
mental health treatment at every level of supervision, monitoring for substance
abuse treatment, and "zero tolerance" for noncompliance with treatment.

(4) On October 31, 2013, DOC filed an administrative warrant charging
Waters with a fifth VOP. On November 14, 2013, the Superior Court did not find
Waters guilty of VOP but modified the prior VOP sentence to require that Waters
remain at Level V until a bed became available in out-patient transitional housing
after which Waters would continue treatment in out-patient mental health treatment

as previously ordered.

(5) On February 10, 2014, DOC filed an administrative warrant charging
Waters with his sixth VOP. C)n March 6, 2014, the Superior Court found that
Waters had committed a VOP and resentenced him to a total of five years and six
months at Level V suspended after three years and six months for six months at
Level III. The sentence order notes that Waters did not want to participate in Key
and Crest substance abuse treatment at Levels V and IV but wanted to do "straight
[L]evel 5 time." The order also notes that Waters "SHOULD BE 'EVALUATED
PROMPTLY TO INSURE HE IS RECEIVING APPROPRIATE MENTAL
HEALTH MEDS" and that, at Level III, Waters "shall receive outpatient substance
and mental health treatment and follow all treatment recommendations and take
meds as prescribed."

(6) Waters has appealed his March 6, 2014 conviction and sentence for
VOP. In his opening brief on appeal, Waters contends that the sentence is "not
fair," and that the judge "should have . . . been a little bit more considerate of the . .
. circumstances." His contentions are not supported by the record and are without
legal merit. Even in the absence of a transcript of the underlying proceeding,
which Waters appears to have ordered for the appeal but did not make financial
arrangements to pay for, the sentence order included in the record reflects that the
judge gave thoughtful consideration to Waters’ circumstances and imposed an

appropriate sentence,

(7) The Court’s appellate review of a sentence generally is limited to
whether the sentence exceeds the statutory limits.l "[O]nce a defendant violates
the terms of his probation, the Superior Court has the authority to require a
defendant to serve the sentence imposed, or any lesser sentence."z A subsequent
VOP sentence cannot exceed the term that a prior VOP sentence left suspended.3
In this case, because the sentence imposed on November 14, 2013 for Waters’ fifth
VOP imposed seven years at Level V suspended after six months for probation, the
Superior Court was authorized to impose five years and six months at Level V
suspended after three years and six months for probation when sentencing Waters
for his sixth VOP on March 6, 2014.

NOW, THEREFORE, IT IS ORDERED that the judgment of the Superior
Court is AFFIRMED.

BY THE COURT:

/s/ Rana’v l Holland
Justice

1 Mayes v. smre, 604 A.zd 839, 342 (r)el. 1992).
2 stare v. sz@man, 886 A.zd 1257, 1260 (Del. 2005) wang 11 Dez. C. § 4334(¢)).
3 Pavulak v. s¢aze, 880 A.zd 1044, 1045-46(1)@1. 2005).

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