         IN THE SUPREME COURT OF THE STATE OF DELAWARE

WILLIAM SEWELL,                          §
                                         §   No. 385, 2019
       Defendant Below,                  §
       Appellant,                        §   Court Below—Superior Court
                                         §   of the State of Delaware
       v.                                §
                                         §   Cr. ID No. 1612018659 (S)
STATE OF DELAWARE,                       §              1708015292 (S)
                                         §
       Plaintiff Below,                  §
       Appellee.                         §

                          Submitted: January 22, 2020
                          Decided:   March 4, 2020

Before SEITZ, Chief Justice; TRAYNOR and MONTGOMERY-REEVES,
Justices.

                                     ORDER

      Upon consideration of the appellant’s opening brief, the appellee’s motion to

affirm, and the record below, it appears to the Court that:

      (1)    The appellant, William Sewell, filed this appeal from his sentencing for

a violation of probation (“VOP”). The State has moved to affirm the judgment below

on the ground that it is manifest on the face of Sewell’s opening brief that his appeal

is without merit. We agree and affirm.
       (2)    On August 23, 2017, Sewell entered a Robinson plea1 to charges of

aggravated menacing and possession of a firearm while under the influence of

alcohol.     For aggravated menacing, the Superior Court sentenced Sewell to

imprisonment for five years, with credit for 106 days previously served, suspended

after one year for one year of Level III probation. For the firearm charge, the

Superior Court sentenced him to imprisonment for one year, suspended for one year

of Level III probation.

       (3)    On February 13, 2018, Sewell pleaded guilty to a fifth-offense DUI.

The Superior Court sentenced him to imprisonment for five years, suspended after

eighteen months and successful completion of the Key program for eighteen months

of Level III probation. In addition to other conditions, the sentencing order also

established zero tolerance for drugs and alcohol and required Sewell to maintain at

least ninety consecutive days of sobriety, as measured by a transdermal alcohol

detection device (“TAD device”) or periodic breath or urine analysis.

       (4)    On June 27, 2019, a probation officer filed a VOP report alleging that

Sewell’s TAD device had indicated that Sewell was consuming alcohol on June 12

and June 13, 2019. At a VOP hearing on August 2, 2019, Sewell’s counsel stated

that (i) Sewell had agreed to admit to being in violation of his probation, (ii) the State



1
  See Robinson v. State, 291 A.2d 279 (Del. 1972) (permitting the acceptance of a guilty plea in
the absence of an admission of guilt).
                                               2
was recommending a ninety-day sentence, and (iii) Sewell was requesting a time-

served sentence with no probation to follow. 2 Sewell’s counsel then asked Sewell if

he had correctly stated the circumstances, and Sewell responded affirmatively. 3

       (5)    Following that exchange, the Superior Court found Sewell in violation

and asked Sewell if there was anything that he would like to say before the court

imposed its sentence. Sewell then stated that he had not consumed alcohol in more

than thirty months and did not understand how the TAD device could have detected

alcohol, unless it had been triggered by use of shampoo, lotion, or some other

product that contained alcohol. 4 The probation officer who was present at the

hearing responded that the TAD device can differentiate between an environmental

presence of alcohol and alcohol consumption, stated that the TAD device had

provided a blood-alcohol reading of .04, and indicated that such a reading was

inconsistent with Sewell’s proffered explanations. 5 After hearing from Sewell and

the probation officer, the Superior Court imposed the following VOP sentence: (i)

on the aggravated menacing charge, imprisonment for three years and ten months,

suspended for fifty-four days at the VOP Center, followed by eighteen months of

Level III probation with TAD monitoring; (ii) on the firearm charge, imprisonment



2
  State v. Sewell, Cr. ID No. 1612018659, Transcript of VOP Hearing, at 2 (Del. Super. Ct. Aug.
2, 2019).
3
  Id.
4
  Id. at 3-4.
5
  Id. at 4.
                                              3
for one year, suspended for one year of Level III probation; and (iii) on the fifth-

offense DUI charge, imprisonment for three years, suspended for one year of Level

III probation. 6

       (6)    Sewell has appealed from his August 2, 2019 VOP sentence. On

appeal, he argues that he was falsely accused of violating his probation because the

TAD device was incorrectly installed and was recording the alcohol consumption of

some other person. He contends that his VOP sentence was excessive and violated

his Eight Amendment right against cruel and unusual punishment, and he seeks

compensatory damages for pain and suffering as a result of his alleged false

imprisonment.

       (7)    After careful consideration, we find no merit to Sewell’s appeal. Sewell

appeared at the VOP hearing represented by counsel. He admitted that he had

violated probation, and the Superior Court found him in violation based on that

admission. Sewell’s admission to violating probation constitutes sufficient evidence

to sustain the Superior Court’s finding of a VOP. 7

       (8)    With respect to his VOP sentence, “[i]t is well-established that appellate

review of sentences is extremely limited.”8 Our review of a sentence generally ends




6
  Id. at 5.
7
  E.g., Cook v. State, 2019 WL 949372 (Del. Feb. 25, 2019); Lougheed v. State, 2016 WL 5899238
(Del. Oct. 10, 2016).
8
  Kurzmann v. State, 903 A.2d 702, 714 (Del. 2006).
                                              4
upon a determination that the sentence is within the statutory limits prescribed by

the legislature.9 If the sentence falls within the statutory limits, “we consider only

whether it is based on factual predicates which are false, impermissible, or lack

minimal reliability, judicial vindictiveness or bias, or a closed mind.” 10 When

sentencing a defendant for a VOP, the trial court may impose any period of

incarceration up to and including the balance of the Level V time remaining to be

served on the original sentence. 11 Contrary to his contention, Sewell’s VOP sentence

did not violate the Eighth Amendment.                It was neither excessive nor grossly

disproportionate and, indeed, the Superior Court could have imposed a tougher

sentence by requiring Sewell to serve the entire length of the suspended prison

term.12

       (9)     Finally, Sewell did not present his claim for damages to the Superior

Court in the first instance.13 In any event, a defendant may not seek civil damages

in the context of a criminal action.

       (10) Based on our review of the record, it does appear that there was one

error that we address sua sponte. The transcript of the VOP hearing reflects that the



9
  Mayes v. State, 604 A.2d 839, 842 (Del. 1992).
10
   Kurzmann, 903 A.2d at 714.
11
   11 Del. C. § 4334(c).
12
   Biddle v. State, 2017 WL 1376412, at *2 (Del. Apr. 12, 2017) (citing Wallace v. State, 956 A.2d
630, 639 (Del. 2008)).
13
   See DEL. SUPR. CT. R. 8 (“Only questions fairly presented to the trial court may be presented for
review . . . .”).
                                                 5
Superior Court sentenced Sewell to three years at Level V supervision, suspended

for one year of Level III probation for the fifth-offense DUI, Cr. ID No. 17-08-0659.

But the sentencing order imposes a sentence for that charge of three years and nine

months at Level V supervision, suspended for one year of Level III probation.

Accordingly, we remand this matter for the trial court to review the record and

determine whether Sewell’s sentence must be corrected.

      NOW, THEREFORE, IT IS ORDERED that the Motion to Affirm is

GRANTED and the judgment of the Superior Court is AFFIRMED. This matter is

remanded for correction of sentence, if appropriate, in accordance with paragraph

10 of this order. Jurisdiction is not retained.

                                        BY THE COURT:


                                        /s/ Gary F. Traynor
                                        Justice




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