IN TI~IE SUPREl\/[E COURT OF TI-lE STATE OF DELAWARE

SEAN JOI-INSON, §
§ No. 699, 2015
Defendant Below, §
Appellant, § Court Below-Superior Court of
§ the State of Delaware
v. §
§ Cr. ID Nos. l4050l 1596
STA'I'E OF DELAWARE, § l407008226
§
Plaintiff Below, §
Appellee. §

Submitted: April 14, 2016
Decided: June 16, 2016

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

This 16“' day of June 2016, upon consideration of the appellant’s opening
brief, the State’s motion to affmn, and the Superior Court record, it appears to the
Court that:

(1) On October 8, 20l4, the appellant, Sean Johnson, pled guilty to two
counts of Theft of a Senior. Johnson was sentenced to a total of five years at Level
V suspended for two years of Level IV residential substance abuse treatment that
was suspended, upon successful completion of the treatment program, for Level III
treatment af’tercare and probation.

(2) This appeal is from Johnson’s December 8, 2015 conviction and

sentence on a charge that he violated his Level III probation. The State has filed a

motion to affirm the Superior Court judgment on the ground that it is manifest on
the face of Johnson’s opening brief that the appeal is without merit. We agree and
af`firm.

(3) Johnson’s December 8 conviction was the second time he was found
guilty of violating his Level III probation. Johnson’s first violation of probation
("VOP") followed a violation report dated August 3l, 2015, alleging that he was
discharged from Level III treatment aftercare after he failed to report to probation
as required and tested positive for drugs three times. On September 4, 2015,
johnson was found guilty of VOP and sentenced to four years at Level V
suspended for Level III probation and treatment monitoring.

(4) Johnson’s second VOP followed a violation reporting dated
September 21, 2015, again alleging that he had failed to report to probation and for
treatment monitoring. On September 22, 2015, the Superior Court issued a capias,
which was retumed on November 3, 2015. johnson posted bond on November 16
and was released pending the VOP hearing on December 8, 2015,

(5) johnson and Johnson’s probation officer testified at the December 8
VOP hearing. Through counsel, johnson admitted that he failed to report to
probation and for treatment monitoring, but he explained that the failure to report
was due, in part, to his hospitalization at Dover Behavioral Health for sixteen days.

johnson also explained that since getting bonded out on November 16, he had been

l\.)

going to probation and had acquired a full-time job. Johnson asked the court to
consider sentencing him to home confinement to allow him to continue working
and to care for his children. Johnson’s probation officer testified next,
summarizing Johnson’s drug use and history of failing to report to probation and to
cooperate with treatment monitoring. The probation officer told the court that he
had received several calls from family members concemed for the welfare of
Johnson’s children given Johnson’s ongoing drug use. The probation officer
suggested to the court that Johnson needed inpatient drug treatment.

(6) After hearing from Johnson and the probation officer, the Superior
Court adjudged Johnson guilty of VOP and sentenced him to a total of four years at
Level V suspended upon successiial completion of the Level V Key Program for
Level III probation. This appeal followed.

(7) On appeal, Johnson contends that the probation officer made "false
accusations" at the December 8 hearing, which led to the Judge imposing a
sentence with a "closed mind." According to Johnson, instead of focusing on the
extenuating circumstances for the second VOP, namely his extended
hospitalization at Dover Behavioral Health, and his accomplishments since getting
bonded out, the Judge was swayed by the probation officer’s alleged false factual

statements concerning Johnson’s drug use. Johnson’s claim is without merit.

(8) Appellate review of a VOP sentence is limited to determining whether
the sentence is within statutory limits and "is based on factual predicates which are
false, impermissible, or lack minimal reliability, judicial vindictiveness or bias, or
a closed mind."' When the sentence is within statutory limits, as the sentence is
here, the Court will not find an abuse of discretion unless it is clear that the
sentencing judge relied on impermissible factors or exhibited a closed mincl.z 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 of the
defendants Ajudge must have an open mind for receiving all information related
to the question of mitigation."

(9) In Johnson’s case, the transcript of the VOP hearing reflects that the
Superior Court considered the nature of the violation, i.e., Johnson’s failure to
report to probation and for treatment monitoring, both of which Johnson admitted,
as well as Johnson’s explanation in mitigation of the violations. The court also
considered that this was Johnson’s second violation for failure to report and the
second time Johnson had requested that the court impose a sentence that allowed

him to remain at home while receiving drug treatment. Johnson did not object to

' Wesion v. State, 832 A.2d 742, 746 (Del. 2003) (citing Siple v. State, 701 A.Zd 79, 83 (Del.
l997); Mayes v. Sta!e, 604 A.Zd 839, 842-43 (Del. ]992)).

2 Id. (citing Sa)nuel v. Sta!e, 1997 WL 317362, at *l (Del. April l6, 1997)).
3 Id. (citing Ellerbe v. State, 2000 WL 949625, at *l (Del. May l l, 2000)).
4 Id. (citing Shellon v. Sla!e, 744 A.Zd 465, 513 (Del. l999)).

4

or otherwise dispute any of the factual representations made by his probation
officer. On this record, there is nothing to substantiate Johnson’s claim on appeal
that the sentence was based on false factual predicates or that the Judge sentenced
him with a closed mind. Indeed, based on the record, the Superior Court’s
sentence requiring Johnson to complete drug treatment at Level V incarceration

was entirely appropriate
NOW, TH§EREFOR_E, IT IS ORDERED that the motion to affirm is
GR.ANTED. The judgment of the Superior Court is AFFIRMED.

BY THE COURT:

Jsce

