             IN THE SUPREME COURT OF THE STATE OF DELAWARE

FLOYD A. SMITH,                        §
                                       §
        Defendant Below,               §   No. 24, 2017
        Appellant,                     §
                                       §   Court Below—Superior Court
        v.                             §   of the State of Delaware
                                       §
STATE OF DELAWARE,                     §   Cr. ID No. 1209014436
                                       §
        Plaintiff Below,               §
        Appellee.                      §

                           Submitted: February 17, 2017
                           Decided:   April 18, 2017

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

                                  ORDER

        This 18th day of April 2017, 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, Floyd A. Smith, filed this appeal from the Superior

Court’s December 30, 2016 order sentencing him for his second 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 Smith’s opening

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

        (2)    The record reflects that, on January 22, 2013, Smith pled guilty to

three counts of Burglary in the Second Degree. For each burglary count, Smith
was sentenced, effective September 26, 2012, to eight years of Level V

incarceration, suspended after one year for Level III probation. The sentencing

order further provided that Smith was to be evaluated for substance abuse and

follow any recommendations for treatment. Smith did not appeal the Superior

Court’s judgment.

      (3)    In March 2016, an administrative warrant was issued for Smith’s first

VOP. The warrant alleged that Smith had failed to request authorization to move

out of state, failed to notify his probation officer of his change of address, tested

positive several times for drugs, and failed to follow through with substance abuse

treatment.   On April 1, 2016, the Superior Court found Smith violated his

probation.

      (4)    For the first count of Burglary in the Second Degree, Smith was

sentenced to seven years and five months of Level V incarceration, suspended for

one year of Level IV Crest, to be suspended upon successful completion for one

year of Level III Crest Aftercare. For each of the other two counts of Burglary in

the Second Degree, Smith was sentenced to seven years and five months of Level

V incarceration, suspended for decreasing levels of supervision.          The VOP

sentencing order provided that the Treatment Access Center (“TASC”) would

evaluate and monitor Smith. Smith did not appeal the VOP sentence.




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      (5)    In December 2016, an administrative warrant was issued for Smith’s

second VOP. The warrant alleged that Smith violated his probation by testing

positive for opiates. On December 30, 2016, the Superior Court found that Smith

violated his probation.

      (6)    For the first count of Burglary in the Second Degree, Smith was

sentenced to six years and three months months of Level V incarceration,

suspended for one year of Level V Inpatient Drug Treatment, to be suspended

upon successful completion for one year of Level IV Crest, to be suspended upon

successful completion for one year of Level III Crest Aftercare. For each of the

other two counts of Burglary in the Second Degree, Smith was sentenced to seven

years and five months of Level V incarceration, suspended for one year of Level

Level III Crest Aftercare. This appeal followed.

      (7)    In his opening brief, Smith argues that: (i) he had completed the Level

IV Crest program and was awaiting his release to Level III supervision at the time

of his VOP; (ii) the Superior Court erred in sentencing Smith to Level V Inpatient

Drug Treatment and Level IV Crest without obtaining a case study and without

considering Smith’s completion of the Level IV Crest program and mental health

needs as raised by his counsel; and (iii) the length of his probation violates 11 Del.

C. § 4333. These arguments are without merit.




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       (8)     As the appealing party, Smith was required to furnish “a transcript of

all evidence relevant to the challenged finding or conclusion.”1 Smith failed to

request a transcript of the VOP hearing for this appeal. To the extent Smith claims

the Superior Court ignored his counsel’s arguments at the VOP hearing, we cannot

review those claims without a transcript of the hearing.2 As to Smith’s suggestion

that his positive test for opiates after his completion of the Level IV Crest Program

could not constitute a VOP, Smith ignores that he was subject to TASC monitoring

and his probation included successful completion of one year of Level III Crest

Aftercare.

       (9)     As to Smith’s claim that the Superior Court erred in sentencing him to

Level V Inpatient Drug Treatment and Level IV Crest without obtaining a case

study, the Superior Court was not required to obtain a case study before sentencing

him for his VOP. Finally, the length of Smith’s probation (one year of Level IV

Crest and one year of Level III Crest Aftercare) did not violate 11 Del. C. § 1433.3




1
  Del. Supr. Ct. R. 14(e).
2
  Tricoche v. State, 525 A.2d 151, 154 (Del. 1987).
3
  11 Del. C. § 4333(b)(1) (providing that length of probation for any violent felony, which is
defined by Section 4201(c) to include Burglary in the Second Degree, shall be limited to two
years); 11 Del. C. § 4333(g)(2) (providing that “the phrase ‘period of probation or suspension of
sentence’ shall not include any period of a sentence that is designated by the sentencing court to
be served at Supervision Accountability Level IV as defined in § 4204(c)(4) of this title”).
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     NOW, THEREFORE, IT IS ORDERED that the motion to affirm is

GRANTED and the judgment of the Superior Court is AFFIRMED.

                                 BY THE COURT:

                                 /s/ Collins J. Seitz, Jr.
                                         Justice




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