           IN THE SUPREME COURT OF THE STATE OF DELAWARE

NEKI T. GIBBS,                        §
                                      §      No. 115, 2018
      Defendant Below,                §
      Appellant,                      §      Court Below: Superior Court of the
                                      §      State of Delaware
      v.                              §
                                      §      Cr. ID No. 0301020856 (N)
STATE OF DELAWARE,                    §
                                      §
      Plaintiff Below,                §
      Appellee.                       §

                         Submitted: June 5, 2018
                         Decided:   August 7, 2018

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

                                    ORDER

      (1)    The appellant, Neki T. Gibbs, filed this appeal from a sentence imposed

on February 7, 2018 for a violation of probation (“VOP”). The appellee, State of

Delaware, has moved to affirm the Superior Court’s judgment on the ground that it

is manifest on the face of Gibbs’ opening brief that the appeal is without merit. We

agree and affirm.

      (2)    In 2003, Gibbs pleaded guilty to two counts of third-degree rape as

lesser-included offenses of first-degree rape. In exchange for the guilty plea, the

State voluntarily dismissed an additional first-degree rape charge and charges of

second-degree rape, second-degree kidnapping, and three weapon offenses. On

October 10, 2003, after a presentence investigation, the Superior Court sentenced
Gibbs to a total of twenty years of Level V incarceration suspended after sixteen

years for Level III probation. As special conditions of the sentence, the Superior

Court ordered Gibbs to undergo a mental health evaluation and to participate in all

recommendations for counseling and treatment.

       (3)    In January and February 2018, Gibbs’ probation officer filed a VOP

report and supplemental report charging Gibbs with a VOP for having tested positive

for cocaine and heroin in January 2018 and for having been discharged from a sex

offender therapy group in December 2017 for failing to attend sessions. At the VOP

hearing on February 7, 2018, Gibbs admitted that he violated probation by using

illegal drugs and failing to attend the mandatory therapy sessions. The Superior

Court found Gibbs guilty of VOP and sentenced him to four years of Level V

incarceration with no probation to follow.1

       (4)    In March 2018, Gibbs filed this appeal from the VOP sentence. He also

filed a motion for a modification of sentence in the Superior Court. On appeal, and

in his Superior Court motion, Gibbs argues that the VOP sentence imposed on

February 7, 2018 was excessively harsh, and he complains that the sentence did not

order that he receive drug treatment while he is incarcerated. On March 29, 2018,

the Superior Court issued an order deferring consideration of Gibbs’ motion for


1
  On April 6, 2018, the Superior Court corrected the February 7, 2018 sentence to include the
statutorily-required six-month period of supervision to facilitate Gibbs’ transition back into
society. 11 Del. C. § 4204(l).
                                              2
modification of sentence until after Gibbs’ appeal of the VOP sentence has

concluded.

       (5)    Appellate review of a sentence is limited to a determination of whether

the sentence is within statutory limits.2 When sentencing a defendant for a VOP, 11

Del. C. § 4334(c) authorizes the Superior Court to impose any period of

incarceration—up to and including the balance of incarceration remaining on the

original sentence—so long as the defendant is given credit for all incarceration

previously served and the sentence does not exceed the incarceration that a prior

sentence left suspended.3 In this case, the record does not reflect, and Gibbs does

not allege, that the VOP sentence exceeded statutory limits or the balance of

incarceration remaining on the sentence.

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

Court is AFFIRMED.

                                            BY THE COURT:

                                            /s/ Gary F. Traynor
                                            Justice




2
  Woods v. State, 2018 WL 1677240 (Del. April 5, 2018) (citing Mayes v. State, 604A.2d 839, 842
(Del. 1992)).
3
  Pavulak v. State, 880 A.2d 1044, 1045, 1046 (Del. 2005) (quoting and interpreting 11 Del. C. §
4334(c)).
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