         IN THE SUPREME COURT OF THE STATE OF DELAWARE

TREY M. MILLER,                            §
                                           §     No. 241, 2018
       Defendant Below,                    §
       Appellant,                          §     Court Below: Superior Court
                                           §     of the State of Delaware
       v.                                  §
                                           §     I.D. Nos. 1203015202 (N) and
STATE OF DELAWARE,                         §               1208012177 (N)
                                           §               (Consolidated)
       Plaintiff Below,                    §
       Appellee.                           §

                             Submitted: February 13, 2019
                               Decided: April 18, 2019

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

                                     ORDER

      On this 18th day of April 2019, upon consideration of the parties’ briefs, oral

argument, and the record of the case, it appears that:

      (1)    The appellant, Trey M. Miller, appeals the Superior Court’s denial of

his motion to modify a sentence he received for violating the terms of his probation.

On appeal, he contends that the sentence imposed was the result of a closed mind,

judicial vindictiveness, or bias on the part of the sentencing judge. He urges us to

vacate his sentence and remand for resentencing.

      (2)    At the violation of probation hearing, the State recommended that

Miller be sentenced to one year at Level V with no probation to follow. In its

answering brief on appeal, the State calculates that the presumptive sentence under
the Delaware Sentencing Accountability Commission’s sentencing guidelines was

three years and three months at Level V. The sentence imposed by the court,

however, was eight years of unsuspended Level V time, followed by probation.

This sentence significantly exceeded both the State’s recommendation and the

sentencing guidelines. In addition to arguing that the sentence was the result of a

closed mind, judicial vindictiveness, or bias on the part of the judge, Miller contends

that the judge was required, and failed, to (1) consider Miller’s character and the

nature of his probation violations and (2) give a sufficient explanation for imposing

a penalty more severe than the penalty recommended by the State or the guidelines.

      (3)     Because Miller’s sentence is within the statutory limits and because

Miller fails to point to any evidence of a closed mindedness, judicial vindictiveness,

or bias on the part of the judge, we have concluded that the judgment of the Superior

Court should be affirmed. It was within the Superior Court’s discretion to impose

a sentence within the statutory limits, and the court gave legitimate reasons for

imposing a harsher sentence than the sentence recommended by the State or the

guidelines.

      (4)     On March 5, 2013, Miller pleaded guilty to Robbery in the Second

Degree, Burglary in the Second Degree, Theft over $1,500, and Conspiracy in the

Second Degree. He was sentenced to five years at Level V, suspended after two

years for two years at Level III on the robbery conviction.         For the burglary


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conviction, he was sentenced to eight years at Level V, suspended after one year for

two years at Level III. For the theft conviction, he was sentenced to two years at

Level V, suspended for twelve months at Level III.            And for the conspiracy

conviction, he was sentenced to two years at Level V, suspended for twelve months

at Level III.

       (5)      On October 14, 2014, the Superior Court reviewed Miller’s sentence,

and he was released from Level V and began serving a period of Level III probation.

Following his release, Miller violated his probation four times and failed to appear

in the Superior Court on several occasions. On January 6, 2015, the Superior Court

sentenced Miller for his first violation of probation to six months of unsuspended

Level V time followed by probation.       On April 26, 2016, the court sentenced Miller

for his second violation of probation to a probationary term without any unsuspended

Level V time.      As for the other violations, Miller failed to appear at violation of

probation hearings scheduled for September 2016, November 2016, January 2017,

April 2017, August 2017, and February 2018.

       (6)      On March 6, 2018, at the violation of probation hearing that led to this

appeal, Miller admitted and the Superior Court found that he violated his probation

by absconding from probation and failing to report for appointments at the Treatment

Access Center. At the hearing, the court heard from the State, Miller’s counsel,

and Miller himself.        Miller’s probation officer recommended that Miller be


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sentenced to a total of one year at Level V and that he then be discharged from

probation as unimproved.         Miller presented mitigating circumstances for the court

to consider.       He explained that during the period of time when some of the

probation violations occurred, he was grieving the loss of his three-month-old

daughter, who had passed away in September 2016, and that he had not received any

counseling to deal with this. Miller also noted that more recently, he had been

working at a mushroom factory and was living with his grandparents, for whom he

helped provide care. He asked the court to take into consideration the technical

nature of his violations, the time he served for the underlying crimes, his drug

addiction, which was compounded by the loss of his child, his employment status,

and his family support and to consider a sentence of six months at Level V.

         (7)    Following Miller’s remarks, the court made comments and asked Miller

some questions. The court noted that Miller did not appear to take probation or

sentencing seriously and asked for an explanation as to why “[e]very time bail is

posted for him, he does not come back like he’s supposed to do.”1 The court further

commented on his family’s ability to post bail for him in the past and noted that,

when this happened, he did not come back to court as required. The court stated to

Miller, “apparently, you disregard the Court and everything that the Court has to say




1
    App. to Appellant’s Opening Br. at A078.

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to you[,] and your family is not able to control you.”2 The court also noted that

Miller appeared to be attempting to “manipulate the Court.”3

       (8)    The court then sentenced Miller as follows.               As to his robbery

conviction, he was sentenced to three years at Level V; as to his burglary conviction,

six years at Level V, suspended after three years for one year of Level IV home

confinement, suspended after six months for six months at Level III; as to his theft

conviction, two years at level V, suspended after one year for one year of Level IV

home confinement, suspended after six months for six months at Level III; and as to

his conspiracy conviction, two years at Level V, suspended after one year for one

year of Level IV home confinement, suspended after six months for six months at

Level III.    All sentences of confinement were set to run consecutively, thus

resulting in a total of eight years of unsuspended Level V confinement.

       (9)    On March 19, 2018, Miller filed a motion for sentence reduction in

which he challenged the length of the sentence.        Noting its “considerable discretion

over the appropriate grounds for a reduction of sentence” and Miller’s criminal

history, the Superior Court denied Miller’s motion.4 In denying his motion, the

court explained that “his record reflects an inability or unwillingness to follow the



2
  Id. at A080.
3
  Id.
4
  Appellant’s Opening Br. Ex. C, at 4 (quoting State v. Lewis, 797 A.2d 1198, 1201 (Del. 2002)
(en banc)).

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rules of probation” and that “it does not appear as though his family network is able

to get [him] to abide by the rules of probation or appear on Court dates.”5

         (10) Appellate review of a sentence is limited to whether the sentence is

within the statutory limits prescribed by the General Assembly and whether it is (1)

based on factual predicates that are false, impermissible, or lack minimal reliability

or (2) the result of a closed mind or judicial vindictiveness or bias.6     “When the

sentence is within the statutory limits, this Court will not find an abuse of discretion

unless it is clear that the sentencing judge relied on impermissible factors or

exhibited a closed mind.” 7             Put differently, “a defendant has no legal or

constitutional right to appeal a statutorily authorized sentence simply because it does

not conform to the sentencing guidelines established by the Sentencing

Accountability Commission.”8

         (11) Miller first argues that the sentence he received was the result of a

closed mind. “A judge sentences with a closed mind when the sentence is based

on a preconceived bias without consideration of the nature of the offense or the

character of the defendant.”9 Apart from pointing out that the sentencing judge

imposed a sentence that was much longer than the one recommended by the State or


5
    Id.
6
    Cruz v. State, 990 A.2d 409, 416 (Del. 2010) (en banc).
7
    Weston v. State, 832 A.2d 742, 746 (Del. 2003).
8
    Mayes v. State, 604 A.2d 839, 845 (Del. 1992).
9
    Weston, 832 A.2d at 746.

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called for under the guidelines and that the judge did not discuss on the record his

claimed mitigating factors, Miller fails to point to anything indicating that the judge

had a closed mind. Unlike in Osburn v. State, for example, where the sentencing

judge expressly refused to hear mitigating evidence,10 the sentencing judge here

listened to the statements of Miller and his counsel.               To the extent Miller’s

argument is that the Superior Court failed to sufficiently articulate its reasons for

departing from the guidelines, it necessarily fails. Because the guidelines provide

“no basis for appeal,” the sentencing court’s failure to articulate its reasons for

imposing a sentence in excess of the guidelines cannot amount to reversible error.11

         (12) Miller next argues that his sentence was the result of judicial

vindictiveness or bias.         He cites Tramill v. State, where this Court reversed

increased sentences following a retrial after a successful appeal from the original

trial because the sentencing court failed to specifically state the reasons for the

increases.12 The holding of Tramill is inapplicable here. That case involved the

distinct context of an increased sentence of someone convicted on retrial after a

successful appellate attack on his original conviction.13 In that situation, United

States Supreme Court precedent imposes a presumption of vindictiveness. 14


10
     224 A.2d 52, 53 (Del. 1966).
11
     Mayes, 604 A.2d at 846 (quoting Gaines v. State, 571 A.2d 765, 767 (Del. 1990)).
12
     425 A.2d 142, 145-46 (Del. 1980).
13
     Id. at 145.
14
     E.g., North Carolina v. Pearce, 395 U.S. 711, 725-26 (1969), overruled on other grounds by

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Because Miller’s sentence was not imposed in that context, there is no presumption

of vindictiveness. Therefore, the strict requirements of Tramill—that the judge’s

reasons for imposing a more severe sentence affirmatively appear in the record and

be based on conduct occurring after the imposition of the original sentence 15—do

not apply. Moreover, in this case the Superior Court did state the reasons for its

sentence: Miller’s apparent disregard for the court’s authority and his inability to

comply with the requirements of his probation.16             These reasons were based on

Miller’s conduct occurring after the imposition of his original sentence.          Other than

Tramill, Miller cites to no case supporting his argument that the sentencing judge

acted vindictively or with bias.

       (13) In his Reply Brief, Miller argues that the Superior Court was vindictive

because the court inquired as to the “back-up” time for his robbery conviction.

Asking how much unserved Level V time remained on the robbery conviction can

hardly be considered evidence of judicial vindictiveness.            The court likely asked

this question to ensure that it would not (as it legally could not) exceed the remaining

Level V time for that sentence.




Alabama v. Smith, 490 U.S. 794 (1989).
15
   425 A.2d at 145.
16
   See Cruz, 990 A.2d at 417 (“[G]iven Cruz’s history of violating probation, it was well within
the Superior Court’s discretion to revoke his probation and impose a prison sentence,
notwithstanding the probation officer’s recommendation to the contrary.” (internal quotation
marks omitted)).

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

Court is AFFIRMED.

                                BY THE COURT:


                                /s/ James T. Vaughn, Jr.
                                Justice




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