         IN THE SUPREME COURT OF THE STATE OF DELAWARE

 THOMAS WHALEY,                          §
                                         §
       Defendant Below,                  §   No. 492, 2017
       Appellant,                        §
                                         §   Court Below—Superior Court
       v.                                §   of the State of Delaware
                                         §
 STATE OF DELAWARE,                      §   Cr. ID No. 1411016461A (S)
                                         §
       Plaintiff Below,                  §
       Appellee.                         §

                           Submitted: January 24, 2018
                           Decided:   February 26, 2018

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

                                     ORDER

      The appellant’s opening brief, the appellee’s motion to affirm, and the record

below reflect that:

      (1)    The appellant, Thomas Whaley, filed this appeal from the Superior

Court’s denial of his motion for correction of an illegal sentence. The State of

Delaware has filed a motion to affirm the Superior Court’s judgment on the ground

that it is clear on the face of Whaley’s opening brief that his appeal is without merit.

We agree and affirm.

      (2)    On January 8, 2016, Whaley pled guilty to one count of Disregarding

an Officer’s Signal and Attempted Criminal Trespass in the First Degree. The

Superior Court sentenced Whaley as follows: (i) for Disregarding an Officer’s
Signal, thirty days of Level V incarceration, with credit for thirteen days previously

served; and (ii) for Attempted Criminal Trespass in the First Degree, one year of

Level V incarceration, suspended for one year of Level II probation. Whaley did

not appeal the Superior Court’s judgment.

      (3)    In March 2016, Whaley was charged with his first VOP. On April 8,

2016, the Superior Court found that Whaley had violated his probation. The

Superior Court sentenced Whaley to one year of Level V incarceration, with credit

for fifteen days previously served, suspended for one year of Level III probation for

Attempted Criminal Trespass in the First Degree. In June 2016, a capias was issued

for another VOP by Whaley. The capias was returned in May 2017. On May 25,

2017, the Superior Court found that Whaley had violated his probation and

sentenced him, effective May 25, 2017, to eleven months of Level V incarceration,

suspended for six months at the Level IV VOP Center.

      (4)    In September 2017, Whaley was charged with a third VOP based on his

failure to comply with the rules and regulations of the Sussex VOP Center. The

charges arose from a fight with another inmate. On October 6, 2017, the Superior

Court found that Whaley had violated his probation. The Superior Court sentenced

Whaley, effective October 6, 2017, to six months of Level V incarceration.




                                          2
         (5)   On October 30, 2017, Whaley filed a motion for correction of illegal

sentence. The Superior found the motion without merit and denied it. This appeal

followed.

         (6)   In his opening brief, Whaley argues, as he did below, that his VOP

sentence violated statutory limitations and sentencing guidelines. We review the

Superior Court’s denial of a motion for correction of sentence for abuse of discretion,

although questions of law are reviewed de novo.1 A sentence is illegal if it exceeds

the statutory limits, violates double jeopardy, is ambiguous or internally

contradictory, omits a term required to be imposed by statute, or is not authorized

by the judgment of conviction.2 Whaley’s VOP sentence is not illegal.

         (7)   Once Whaley 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 his sentence.3 Whaley was sentenced to eleven months of Level V

    incarceration, suspended for six months of Level IV VOP Center for his second

    VOP on May 25, 2017. At the time Whaley was sentenced for his third VOP on

    October 6, 2017, he had served less than five months of the eleven months imposed

    on May 25, 2017.4 The six-month Level V sentence imposed on October 6, 2017


1
  Weber v. State, 2015 WL 2329160, at *1 (Del. May 12, 2015).
2
  Brittingham v. State, 705 A.2d 577, 578 (Del. 1998).
3
  11 Del. C. § 4334(c); Pavulak v. State, 880 A.2d 1044, 1046 (Del. 2005).
4
  The time Whaley spent at the Level IV VOP Center entitled him to Level V credit against his
sentence. Spencer v. State, 2014 WL 1258301, at *2 (Del. Mar. 25, 2014).

                                             3
    did not exceed the Level V time remaining on Whaley’s May 25, 2017 VOP

    sentence. As to Whaley’s claim that his VOP sentence exceeded the Sentencing

    Accountability Commission’s guidelines, “departure from the guidelines is not a

    basis to overturn a sentence within the statutory limits.”5

          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/ Leo E. Strine, Jr.
                                               Chief Justice




5
    Barrett v. State, 2015 WL 4510717, at *2 (citing Siple v. State, 701 A.2d 79, 83 (Del. 1997)).

                                                  4
