IN THE SUPRElVIE COURT OF THE STATE OF DELAWARE

WEBSTER L. STAYAT HOME, §
§
Defendant Below, § No. 350, 2014
Appellant, §
§
V. § Court Below—Superior Court
§ of the State of Delaware,
STATE OF DELAWARE, § in and for New Castle County
§ Cr. ID No. 1109017888
Plaintiff Below, I §
Appellee. §

Submitted: December 9, 2014
Decided: January 12, 2015

Before STRINE, Chief Justice, HOLLAND, and VALIHURA, Justices.
O R D E R

This 12th day of January 2015, upon consideration of the appellant’s
opening brief, the appellee’s motion to affirm, and the record below, it appears to
the Court that:

(1) The appellant, Webster Stayathome, ﬁled this appeal from the
Superior Court’s June 6, 2014 order sentencing him for his 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 Stayathome’s opening

brief that the appeal is without merit.1 We agree and afﬁrm.

1 Supr. Ct. R. 25(a).

(2) The record reﬂects that, on February 8, 2012, a New Castle County
jury found Stayathome guilty of Robbery in the Second Degree and Resisting
Arrest. Effective September 23, 2011, Stayathome was sentenced as follows: (i)
for Robbery in the Second Degree, ﬁve years of Level V incarceration, suspended
after one year for four years of Level IV Halfway House, suspended after six
months for two years of Level III probation; and (ii) for Resisting Arrest, one year
of Level V incarceration, suspended for one year of Level II probation.
Stayathome’s sentence included a zero tolerance for substance abuse condition.
Stayathome did not appeal.

(3) On November 29, 2012, a warrant was ﬁled for Stayathome’s ﬁrst
VOP. After a VOP hearing on January 2, 2013, the Superior Court found that
Stayathome had violated his probation. The Superior Court sentenced Stayathome
for this VOP as follows: (i) for Robbery in the Second Degree, four years of Level
V Boot Camp, to be suspended upon successful completion of Boot Camp for two
years of Level III probation; and (ii) for Resisting Arrest, one year of Level V
incarceration, suspended for one year of Level II probation. Stayathome did not
appeal this order.

(4) On August 16, 2013, another warrant was ﬁled for Stayathome’s
VOP. After a VOP hearing on August 28, 2013, the Superior Court found that

Stayathome had violated his probation. The Superior Court sentenced Stayathome

for this VOP as follows: (i) for Robbery in the Second Degree, three years and six
months of Level V incarceration, suspended after thirty days of Level IV Boot
Camp Tune-Up for eighteen months of Level III probation; and (ii) for Resisting
Arrest, one year of Level V incarceration, suspended for one year of Level II
probation. Stayathome did not appeal this order.

(5) On October 7, 2013, another warrant was ﬁled for Stayathome’s VOP.
After a VOP hearing on November 27, 2013, the Superior Court found that
Stayathome had not violated his probation. The Superior Court dismissed the VOP
charges.

(6) On January 8, 2014, another warrant was ﬁled for Stayathome’s VOP.
Stayathome had missed scheduled visits with his probation ofﬁcer and violated his
curfew. A VOP hearing was held in Sussex County (where other charges against
Stayathome were pending) on June 6, 2014. The transcript of the June 6, 2014
hearing reﬂects that the State entered a mile prosequi on burglary and other
charges pending against Stayathome in Sussex County with the understanding that
Stayathome conceded his VOP. Stayathome, who was represented by counsel,
admitted that he violated his probation.

(7) The Superior Court sentenced Stayathome for this VOP as follows: (i)
for Robbery in the Second Degree, four years and nine months of Level V

incarceration, suspended after successﬁil completion of the Level V Key program

for one year of Level IV Residential Substance Abuse Treatment, suspended after
successful completion for eighteen months of Level III Aftercare; and (ii) for
Resisting Arrest, one year of Level V incarceration, suspended for one year of
Level II probation. The Superior Court subsequently corrected the sentence for
Robbery in the Second Degree to two years and eleven months of Level V
incarceration, suspended after successﬁJl completion of the Level V Key program
for one year of Level IV Residential Substance Abuse Treatment Program,
suspended after successful completion for eighteen months of Level III Aftercare.
This appeal followed.

(8) On appeal, Stayathome claims that his sentence was excessive for
technical probation violations, the Sussex County Superior Court judge was biased
and exhibited a closed mind, and that his VOP should have been decided by a New
Castle County judge, not a Sussex County judge. 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.2 Once
Stayathome 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

Stayathome’ s sentence.3

2 Kurzmann v. State, 903 A.2d 702, 714 (Del. 2006).

3 11 Del. C. § 4334(c); Pavulak v. State, 880 A.2d 1044, 1046 (Del. 2005).

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(9) As of August 28, 2013, Stayathome was sentenced to a total of four
years and six months of Level V incarceration — three years and six months of
Level V incarceration for Robbery in the Second Degree (suspended after thirty
days of Level IV Boot Camp Tune-Up for eighteen months of Level III probation)
and one year of Level V incarceration for Resisting Arrest (suspended for one year
of Level II probation). After the correction of the June 6, 2014 sentencing order,
Stayathome was sentenced to a total of three years and eleven months of Level V
incarceration — two years and eleven months of Level V incarceration for Robbery
in the Second Degree (suspended after successful completion of the Level V Key
program for decreasing levels of supervision) and one year of Level V
incarceration for Resisting Arrest (suspended for one year of Level II probation).
This sentence did not exceed the amount of Level V time previously imposed and
was within statutory limits.

(10) If the sentence is within statutory limits, the sentence will not be
disturbed on appeal unless it is clear that the sentencing judge relied on
impermissible factors or exhibited a closed mind.4 Stayathome claims the Superior
Court judge was biased and exhibited a closed mind because he sentenced

Stayathome based upon the charges that were dismissed by nolle prosequz'.

4 Weston v. State, 832 A.2d 742, 746 (Del. 2003).

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(l 1) The transcript of the VOP hearing does not support Stayathome’s
contentions. A judge sentences a defendant with a closed mind when the sentence
is based upon a preconceived bias rather than consideration of the nature of the
offense and the character of the defendant.5 In this case, the Superior Court judge
listened to the arguments of the State, Stayathome’s counsel, and Stayathome.
Stayathome admitted that he had violated his probation and had an extensive
criminal history in Delaware. The Superior Court did not abuse its discretion in
ﬁnding Stayathome had violated his probation and sentencing Stayathome for his
VOP.

(12) As to Stayathome’s claim that the New Castle County judge who
handled his previous VOPs should have handled his VOP instead of a Sussex
County judge, Stayathome did not raise this claim at the June 6, 2014 hearing so
we will review for plain error.6 The transcript of the June 6, 2014 hearing reﬂects
that the Sussex County judge spoke to the New Castle County judge and handled
the matter to expedite processing of the VOP case and the Sussex County charges.
The VOP case remained a New Castle County case. Stayathome and his counsel
did not object to the Sussex County judge deciding his VOP or request that that the

New Castle County judge decide his VOP. A defendant has no right to have the

5 Id. at 746.

6 Supr. Ct. R. 8.

same judge decide every matter in his case, and the fact that a defendant commits
multiple Violations of his probation does not somehow earn him the right of being
able to demand that the same judge handle all of the hearings that his own

misconduct required. Under these circumstances, we conclude there was no plain

error.
NOW, THEREFORE, IT IS I ORDERED that the motion to afﬁrm is
GRANTED and the judgment of the Superior Court is AFFIRMED.

BY THE COURT:

' Kgﬂaw

Justice

