      IN THE SUPREME COURT OF THE STATE OF DELAWARE

TEDDIE W. NELSON,                      §
                                       §   No. 600, 2015
      Defendant Below-                 §
      Appellant,                       §   Court Below—Superior Court
                                       §   of the State of Delaware,
      v.                               §
                                       §   Cr. ID No. 1410012782
STATE OF DELAWARE,                     §
                                       §
      Plaintiff Below-                 §
      Appellee.                        §

                           Submitted: April 7, 2016
                            Decided: May 24, 2016

Before HOLLAND, VALIHURA, and VAUGHN, Justices.

                                  ORDER

      This 24th day of May 2016, upon consideration of the appellant’s

Supreme Court Rule 26(c) brief, the State’s response, and the record below,

it appears to the Court that:

      (1)    On October 6, 2015, the Superior Court found that the

appellant, Teddie W. Nelson, had committed a violation of his probation

(“VOP”). Nelson was sentenced to three years of Level V incarceration.

This is Nelson’s direct appeal.

      (2)    On appeal, Nelson’s counsel (“Counsel”) filed a brief and a

motion to withdraw pursuant to Supreme Court Rule 26(c) (“Rule 26(c)”).

Counsel asserts that, based upon a complete and careful examination of the
record, there are no arguably appealable issues. Counsel informed Nelson of

the provisions of Rule 26(c) and provided Nelson with a copy of the motion

to withdraw and the accompanying brief. Counsel also informed Nelson of

his right to identify any points he wished this Court to consider on appeal.

Nelson has raised several issues for this Court’s consideration. The State

has responded to the issues raised by Nelson and moved to affirm the

Superior Court’s judgment.

       (3)    When reviewing a motion to withdraw and an accompanying

brief, this Court must: (i) be satisfied that defense counsel has made a

conscientious examination of the record and the law for arguable claims; and

(ii) conduct its own review of the record and determine whether the appeal is

so totally devoid of at least arguably appealable issues that it can be decided

without an adversary presentation.1

       (4)    The record reflects that, on December 16, 2014, Nelson pled

guilty to Robbery in the Second Degree and Theft Less Than $1,500.

Nelson was sentenced, effective October 17, 2014, as follows: (i) for

Robbery in the Second Degree, five years of Level V incarceration,

suspended after six months for one year of Level III probation; and (ii) for

Theft Less Than $1,500, one year of Level V incarceration, suspended for
1
 Penson v. Ohio, 488 U.S. 75, 83 (1988); Leacock v. State, 690 A.2d 926, 927-28 (Del.
1996).


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one year of Level III probation. Nelson was also required to undergo a

substance abuse evaluation and to follow any recommendations for

treatment, counseling, and screening.

      (5)    On June 5, 2015, an administrative warrant was filed for

Nelson’s first VOP. The VOP report alleged that Nelson had violated the

terms of his probation and treatment program by testing positive for drug

use. On June 16, 2015, the Superior Court found that Nelson had violated

his probation. Nelson was sentenced as follows: (i) for Robbery in the

Second Degree, five years of Level V incarceration, suspended for eighteen

months of Level III Gateway Program; and (ii) for Theft Less Than $1,500,

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

probation.   Nelson was required to complete the Gateway Program

successfully and follow all treatment and conditions imposed.

      (6)    On September 25, 2015, an administrative warrant was filed for

Nelson’s second VOP. The VOP report alleged that the Gateway Program

had requested Nelson’s discharge due to his continued non-compliance with

the program and his refusal to sign a therapeutic agreement.        Nelson

admitted that he violated the Gateway Program by chewing tobacco, but

disputed violating other rules of the program and stated that he had signed

the therapeutic agreement. The Superior Court initially indicated that it



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would sentence Nelson to the Key Crest Program. After Nelson expressed a

desire not to do the Key Crest Program and said he could not see himself

completing the Key Crest Program, the Superior Court sentenced Nelson to

three years of Level V incarceration for Robbery in the Second Degree.

Nelson was discharged as unimproved for Theft Less Than $1,500.

          (7)    Nelson’s points on appeal may be summarized as follows: (i) he

did not have the opportunity to call witnesses from the Gateway Program;

(ii) he did not have the opportunity to review the VOP report, which was not

subject to cross-examination and was prepared by a probation officer who

did not appear at the VOP hearing; (iii) there should have been a presentence

investigation (“PSI”); (iv) the Superior Court did not explain its reasons for

imposing a harsh sentence; and (v) the Superior Court recognized that

Nelson needed substance abuse treatment, but did not include any substance

abuse treatment in his VOP sentence.

          (8)    Because Nelson did not raise his claims regarding the Gateway

Program witnesses and VOP report at the VOP hearing, we review those

claims for plain error.2       There is no indication that Nelson sought the

presence of witnesses from the Gateway Program or to present testimony of

those witnesses at the VOP hearing. The record reflects that Nelson was


2
    Supr. Ct. R. 8.


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represented by counsel at the VOP hearing, was aware of his alleged

violations of the Gateway Program, spoke on his own behalf, and admitted

that he had violated the Gateway Program. Under these circumstances, there

is no evidence of plain error.

       (9)    Turning to Nelson’s attacks on his sentence, this Court’s

appellate review of a sentence is extremely limited and generally ends upon

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

the legislature.3 Nelson claims the Superior Court should have ordered a PSI

before sentencing him for his second VOP, but the decision to order a PSI is

left to the discretion of the sentencing judge.4 In arguing that a PSI would

have supported alternative substance abuse treatment at Level III probation,

Nelson ignores that he had already violated substance treatment conditions

and programs while on Level III probation.

       (10) As to Nelson’s contentions regarding the length of his VOP

sentence, once Nelson violated the terms of his probation, the Superior Court

could impose any period of incarceration up to and including the balance of

the Level V time remaining on his sentences (at least four years for Robbery

in the Second Degree and one year for Theft Less Than $1,500).5           The


3
  Kurzmann, 903 A.2d 702, 714 (Del. 2006).
4
  11 Del. C. § 4331(a).
5
  11 Del. C. § 4334(c).


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Superior Court did not exceed that amount of time in imposing a total Level

V sentence of three years for Nelson’s Robbery in the Second Degree

conviction and discharging Nelson as unimproved for Theft Less Than

$1,500. Contrary to Nelson’s contentions, the Superior Court explained its

reasons for the VOP sentence. As to the lack of substance abuse treatment,

the Superior Court was going to impose the Key Crest Program as part of the

VOP sentence, but did not do so after Nelson objected, stated that he could

not complete the program, and wanted Level V time.

      (11) This Court has reviewed the record carefully and has concluded

that Nelson’s appeal is wholly without merit and devoid of any arguably

appealable issue.    We also are satisfied that Counsel has made a

conscientious effort to examine the record and the law and has properly

determined that Nelson could not raise a meritorious claim in this appeal.

      NOW, THEREFORE, IT IS ORDERED that the judgment of the

Superior Court is AFFIRMED. The motion to withdraw is moot.

                                      BY THE COURT:


                                      /s/ Karen L. Valihura
                                             Justice




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