IN THE SUPREME COURT OF THE STATE OF DELAWARE

Plaintiff Below-
Appellee.

WALTER ALLEN, §
§ No. 447, 2015
Defendant Below- §
Appellant, §
§
v. § Court Below—Superior Court
{5 of the State of Delaware,
STATE OF DELAWARE, § Cr. ID 0304013214
§
§
§

Submitted: November 6, 2015
Decided: January 8, 2016

Before VALIHURA, VAUGHN, and SEITZ, Justices
O R D E R

This 8''1 day of January 2016, upon consideration of the parties’ briefs and
the record on appeal, it appears to the Court that:

(1) The appellant, Walter Allen, ﬁled this appeal from a Superior Court
order, dated June 15, 2015, which modiﬁed his violation of probation (“VOP”)
sentence. After careﬁil consideration of the parties’ contentions on appeal, we
conclude that the Court is without jurisdiction to consider Allen’s points
concerning the merits of the Superior Court’s VOP ﬁnding. Nonetheless, as the
State laudably concedes, the Superior Court’s modified VOP sentencing order
must be vacated and this matter remanded to the Superior Court for further

proceedings.

(2) The record reﬂects that Allen pled guilty in October 2005 to one count
each of Robbery in the First Degree and Possession of a Firearm During the
Commission of a Felony. The Superior Court sentenced him on the robbery charge
to ﬁve years at Level V incarceration, to be suspended after serving two years for
two years at Level III probation, and on the PFDCF to three years at Level V
incarceration. After his sentencing, Allen was returned to the State of
Pennsylvania to ﬁnish serving a sentence there. He was returned to Delaware in
December 2010 to begin serving his 2005 sentence. In November 2011, the
Superior Court modiﬁed Allen’s robbery sentence to ﬁve years at Level V, to be
suspended after serving two years for six months at Level IV work release and one
year at Level III probation.

(3) In February 2015, Allen was charged with his ﬁrst VOP. On February
25, 2015, the Superior Court found that Allen had violated the probation on his
robbery conviction and sentenced him to ﬁve years at Level V incarceration
suspended after serving one year in prison for one year at Level III probation. The
record reﬂects that Allen was represented by counsel at the VOP hearing and that
counsel advised Allen of his right to appeal. Allen did not appeal the VOP ﬁnding
or sentence.

(4) In June 2015, the Department of Correction ﬁled a progress report,

asking the Superior Court to modify Allen’s VOP sentence to two years at Level V

13;:

incarceration and to discharge him from serving any further probation as
unimproved and return him to Pennsylvania for parole supervision on his
Pennsylvania sentence. On June 15, 2015, the Superior Court issued a modiﬁed
VOP sentencing order sentencing Allen to two years at Level V incarceration, with
credit for 32 days served, with no probation to follow. Allen appeals that order.

(5) Allen raises three arguments in his opening brief on appeal. He
contends that the grounds asserted for the underlying VOP charge were false. He
also contends that he was on work release and not probation and, therefore, he
could not have been charged with a VOP. Finally, he contends that his VOP
sentence is illegal.

(6) Allen’s failure to ﬁle a timely notice of appeal from the February 25,
2015 VOP proceedings precludes this Court’s review of Allen’s claims attacking
the underlying VOP ﬁnding.l Moreover, to the extent Allen challenges the
Superior Court’s jurisdiction to issue a VOP ﬁnding while Allen was serving the
work release portion of his sentence, that claim has no merit. The Superior Court
has the authority to revoke a probationary sentence at any time, even before a

defendant begins to serve it.2

' Smith v. State, 47 A.3d 431, 434 (Del. 2012).
2 ll Del. C. § 4333(a); Perry v. State, 741 A.2d 359, 362 (Del. 1999).

(7) Allen’s claim regarding the legality of the Superior Court’s June 2015
modiﬁed VOP sentencing order does have merit. The Superior Court did not give
Allen notice or an opportunity to be heard on the DOC’s petition to increase the
Level V portion of Allen’s sentence and to discharge him from further probation.
Allen was entitled to be present, with counsel, at a hearing before the Superior
Court exercised its discretion to resentence him.3 Accordingly, the modiﬁed VOP
sentence must be vacated and this matter must be remanded for ﬁirther
proceedings. On remand, the Superior Court either must hold a hearing on the
DOC’s petition for modiﬁcation at which Allen has the right to be present with

counsel, or it must reinstate its original VOP sentence.

NOW, THEREFORE, IT IS ORDERED that the Superior Court’s June 15,
2015 modiﬁed VOP sentencing order is hereby VACATED, and this matter is
REMANDED for further proceedings consistent with this Order. Jurisdiction is

not retained.

BY THE COURT:

 

