           IN THE SUPREME COURT OF THE STATE OF DELAWARE

ARTHUR L. SHOATES,                       §
                                         §
      Defendant Below,                   §   No. 148, 2018
      Appellant,                         §
                                         §   Court Below—Superior Court
      v.                                 §   of the State of Delaware
                                         §
STATE OF DELAWARE,                       §   Cr. ID Nos. 1310010692,
                                         §   11402002877 (K)
      Plaintiff Below,                   §
      Appellee.                          §

                          Submitted: July 19, 2018
                          Decided:   August 14, 2018

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

                                     ORDER

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

affirm, and the record below, the Court concludes that:

      (1)    The appellant, Arthur L. Shoates, filed this appeal from the Superior

Court’s February 26, 2018 order sentencing him for a violation of probation

(“VOP”). The State of Delaware has moved to affirm the Superior Court’s judgment

on the ground that it is manifest on the face of Shoates’ opening brief that the appeal

is without merit. We agree and affirm.

      (2)    The record reflects that, on June 19, 2017, Shoates resolved two

different cases by pleading guilty to his third Driving Under the Influence offense

and Carrying a Concealed Deadly Instrument (“CCDI”).             The Superior Court
sentenced Shoates as follows: (i) for Driving Under the Influence, effective June 1,

2017, two years of Level V incarceration, suspended after three months and

completion of the Level V Reflections Program, followed by one year of Level II

probation; and (ii) for CCDI, one year of Level V incarceration, suspended for one

year of Level II probation. The sentence included a zero tolerance for alcohol

condition and a requirement that Shoates maintain a period of sobriety not less than

90 consecutive days as measured by a transdermal alcohol device or periodic breath

or urine analysis. On August 24, 2017, the Superior Court modified the Driving

Under the Influence sentence to one year and nine months of Level V incarceration,

suspended immediately for three months Level IV Home Confinement and

successful completion of an Intensive Outpatient Program, followed by one year of

Level III probation. The zero tolerance for alcohol condition and 90-day sobriety

period remained in effect.

      (3)   On February 7, 2018, an administrative warrant was filed for Shoates’

VOP. The VOP report alleged that Shoates violated the terms of his probation and

sentence by testing positive for alcohol and marijuana in January. After a VOP

hearing on February 26, 2018, the Superior Court found that Shoates had violated

his probation. The Superior Court sentenced Shoates as follows: (i) for Driving

Under the Influence, effective February 6, 3018, one year and nine months of Level

V incarceration, suspended immediately for one year of Level III Intensive


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Outpatient Treatment Program; and (ii) for CCDI, one year of Level V incarceration,

suspended for one year of Level III Intensive Outpatient Treatment Program. This

appeal followed.

         (4)     In his opening brief, Shoates objects to his VOP sentence on the

grounds of over-sentencing. He also contends that a probation officer’s statement at

the VOP hearing that he used the transdermal alcohol device as a crutch to stay clean

was unfair because he only used alcohol and marijuana once on New Year’s Eve

under the mistaken belief that he would not be violated for one positive urine sample.

Shoates does not dispute that he violated his probation by consuming alcohol and

marijuana.

         (5)     This Court’s appellate review of a sentence is extremely limited and

generally ends upon a determination that the sentence is within statutory limits.1

Once Shoates committed a VOP, the Superior Court could impose any period of

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

Shoates’ sentence.2 The Level V sentence imposed and immediately suspended by

the Superior Court after Shoates’ VOP did not exceed the Level V time previously

suspended and was within statutory limits. As to the probation officer’s statement

at the VOP hearing, that statement was not unreasonable given the nature of Shoates’



1
    Kurzmann v. State, 903 A.2d 702, 714 (Del. 2006).
2
    11 Del. C. § 4334(c); Pavulak v. State, 880 A.2d 1044, 1046 (Del. 2005).
                                                 3
crimes (a third DUI offense) and his consumption of alcohol shortly after he stopped

wearing a transdermal alcohol device, while he was still subject to a zero tolerance

for alcohol condition.

      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/ Leo E. Strine, Jr.
                                             Chief Justice




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