      IN THE SUPREME COURT OF THE STATE OF DELAWARE

DARREN NELSON,                          §
                                        §   No. 107, 2016
      Defendant Below-                  §
      Appellant,                        §
                                        §
      v.                                §   Court Below—Superior Court
                                        §   of the State of Delaware
STATE OF DELAWARE,                      §
                                        §   Cr. ID Nos. 1008004760 and
      Plaintiff Below-                  §   1305006068
      Appellee.                         §

                           Submitted: May 3, 2016
                           Decided:   June 29, 2016

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

                                   ORDER

      This 29th day of June 2016, after careful consideration of the

appellant’s opening brief, the State’s motion to affirm, and the record on

appeal, it appears to the Court that:

      (1)     The appellant, Darren Nelson, filed this appeal from two

Superior Court orders, dated February 23, 2016 and March 18, 2016,

denying his motions for modification of sentence. The State has filed a

motion to affirm the judgments below on the ground that it is manifest on

the face of Nelson’s opening brief that his appeal is without merit. We agree

and affirm.
       (2)    The record reflects that Nelson pled guilty in November 2010

to one count each of Endangering the Welfare of a Child and Rape in the

Fourth Degree. He was sentenced to a total period of ten years and six

months at Level V incarceration, with credit for 92 days previously served,

to be suspended after serving six months in prison for five years at Level III

probation. As part of the sentence, the Superior Court ordered Nelson to

complete a sexual disorders treatment program. In April 2013, Nelson was

discharged from the program for failing to attend required group therapy. In

October 2013, Nelson pled guilty to one count of Theft and was sentenced to

one year at Level V incarceration, to be suspended immediately for one year

at Level II probation.

       (3)    In September 2013 and again in October 2013, the Superior

Court adjudged Nelson guilty of violating the terms of his probation. Nelson

appealed the Superior Court’s October 2013 VOP adjudication and sentence.

We affirmed the Superior Court’s judgment.1 In August 2015, the Superior

Court found Nelson guilty of his third VOP and sentenced him to a total

period of nine years at Level V incarceration, to be suspended upon

successful completion of a sex offender program, for decreasing levels of

supervision. Nelson did not appeal that VOP finding and sentence. Instead,
1
  See Nelson v. State, 2014 WL 1365822 (Del. 4, 2014) (affirming the Superior Court’s
judgment on Nelson’s second VOP).


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he filed a motion for modification of sentence in November 2015, which the

Superior Court denied. Nelson did not appeal. In February 2016, Nelson

filed two more motions for modification of sentence, which the Superior

Court denied on February 23, 2016 and March 18, 2016.                This appeal

followed.

          (4)    Nelson raises three issues in his opening brief on appeal. First,

he contends that the Superior Court’s order sentencing him on his third VOP

for Rape in the Fourth Degree is an illegal, indefinite sentence because it

requires him to complete a treatment program before release, but he has been

waiting for placement in a program for more than eight months. Second, he

contends that the Superior Court sentenced him for his third VOP with a

closed mind. Third, he argues that the Superior Court sentenced him based

on false information.

          (5)    With respect to the second and third issue, Nelson did not argue

either point to the Superior Court in the first instance. Thus, we will not

consider these arguments for the first time on appeal.2 Moreover, there is no

merit to Nelson’s contention that the Superior Court sentenced him to an

illegal, indefinite sentence for Rape in the Fourth Degree. The Superior

Court sentenced Nelson to a definite term of eight years at Level V

2
    Del. Supr. Ct. R. 8 (2016).


                                          3
incarceration. Successful completion of the sex offender program merely

affords Nelson the possibility of obtaining early release from his eight-year

prison term to a reduced level of supervision.3

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

Superior Court is AFFIRMED.

                                              BY THE COURT:


                                              /s/ Collins J. Seitz, Jr.
                                                     Justice




3
    Whitehair v. State, 2006 WL 298162, at *1 n.9 (Del. Feb. 6, 2006).


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