           IN THE SUPREME COURT OF THE STATE OF DELAWARE

JASON BURCHFIELD,                       §
                                        §     No. 400, 2018
      Defendant Below,                  §
      Appellant,                        §     Court Below: Superior Court of the
                                        §     State of Delaware
      v.                                §
                                        §     Cr. ID No. 1002006119 (N)
STATE OF DELAWARE,                      §
                                        §
      Plaintiff Below,                  §
      Appellee.                         §

                          Submitted: November 2, 2018
                          Decided:   January 14, 2019

Before VALIHURA, SEITZ, and TRAYNOR, Justices.

                                     ORDER

      (1)    In 2010, the appellant, Jason Burchfield, was sentenced to twenty-five

years of incarceration for first-degree robbery and to eight years of incarceration for

second-degree assault, suspended after three years and two years respectively, for

decreasing levels of supervision. On July 10, 2018, the Superior Court found

Burchfield in violation of probation (“VOP”) and re-sentenced him.             It was

Burchfield’s fourth VOP in his 2010 case.

      (2)    In his first of two claims on appeal, Burchfield contends that there was

insufficient evidence to support the Superior Court’s July 10, 2018 finding that he

violated probation. The State has moved to affirm the Superior Court’s judgment

on the ground that it is manifest on the face of the opening brief that Burchfield’s
claim is without merit. We agree with the State’s position. The transcript of the

VOP hearing reflects that Burchfield admitted the charged violation that he failed to

report to probation meetings as required.1 Burchfield’s admission is sufficient

evidence to justify the Superior Court's finding that he violated probation.2 His claim

of insufficient evidence is without merit.

       (3)    In his second claim on appeal, Burchfield contends that the Superior

Court imposed an illegal VOP sentence when re-sentencing him for the second-

degree assault conviction. The State agrees with Burchfield’s contention, and

having reviewed the record, we do too.

       (4)    When sentencing Burchfield for his second VOP on September 27,

2016, the Superior Court imposed, in relevant part, eight years of Level V

incarceration suspended for probation for the second-degree assault conviction. One

month later, on October 31, 2016, the Superior Court issued an order correcting the

VOP sentence by changing the Level V time imposed for the second-degree assault

conviction from eight years to six years. Unfortunately, that correction was not

reflected in the VOP sentences imposed in 2017 and 2018 for Burchfield’s third and

fourth VOPs. In the 2017 and 2018 VOP sentences, the Superior Court imposed




1
 Hr’g Tr. at 5, 7 (July 10, 2018).
2
 Smith v. State, 2014 WL 637057 (Del. Feb. 6, 2014) (citing Jenkins v. State, 8 A.3d 1147, 1154
(Del. 2010).
                                              2
seven years and nine months of Level V incarceration for the second-degree assault

conviction.

           (5) When sentencing a defendant for a VOP, the Superior Court is

authorized 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 iteration of the sentence left suspended.3 In this case,

when imposing seven years and nine months of Level V incarceration for the second-

degree assault conviction in the 2017 and 2018 VOP sentences, the Superior Court

exceeded the six-year limit set by its October 31, 2016 order.4 To that extent, the

2017 and 2018 VOP sentences are illegal and corrective action is warranted.

         NOW, THEREFORE, IT IS ORDERED that the motion to affirm is

GRANTED. The finding that Burchfield violated probation is AFFIRMED. This

matter is REMANDED to the Superior Court with instructions to re-sentence

Burchfield for second degree assault—VN10-02-1706—in accordance with the

Superior Court’s order of October 31, 2016 and the findings and conclusions in this

Order. Jurisdiction is not retained. The mandate shall issue forthwith.

                                               BY THE COURT:
                                               /s/ Gary F. Traynor
                                               Justice

3
    Pavulak v. State, 880 A.2d 1044, 1046 (Del. 2005).
4
    Id. (finding error in a VOP sentence that exceeded the parameters of a prior VOP sentence).
                                                  3
