Opinion
No. 312, 2011 Cr. ID No. 0707020966
02-23-2012
TROY FAISON, Defendant Appellant, v. STATE OF DELAWARE, Plaintiff Appellee.
Court—Superior Court of the State of Delaware in and for New Castle County
Before STEELE, Chief Justice, JACOBS and RIDGELY, Justices.
ORDER
This 23rd day of February 2012, upon consideration of the parties' briefs and the Superior Court record, it appears to the Court that:
(1) The appellant, Troy Faison, filed this appeal from his June 1, 2011 Superior Court sentence for violation of probation (VOP). Having carefully considered the parties' positions on appeal, we conclude that the sentence must be vacated and this matter remanded for sentencing.
(2) On January 8, 2007, Faison pled guilty to distributing heroin. On October 17, 2008, Faison was sentenced, effective April 8, 2008, to 6 years at Level V, with credit for 1 day previously served, suspended after 8 months for 18 months at Level IV work release suspended after 6 months for probation.
(3) On February 5, 2009, Faison was convicted of his first VOP and sentenced to 5 years and 4 months at Level V suspended after 4 months for probation. On December 3, 2009, Faison was convicted of his second VOP and sentenced to 6 years at Level V, with credit for 8 months and 1 day, suspended for 6 months at Level IV work release followed by probation.
(4) On January 5, 2011, Faison was convicted of his third VOP and sentenced to 6 years at Level V, with credit for 8 months and 1 day previously served, suspended for 18 months at Level IV Crest suspended after successful completion for 12 months at Crest Aftercare. On June 2, 2011, Faison was convicted of his fourth VOP and sentenced to 6 years at Level V, with credit for 8 months and 1 day previously served, suspended after 3 years, 8 months and 1 day for 18 months at Level IV Crest suspended after successful completion for the balance at Crest Aftercare. This appeal followed.
(5) On appeal, Faison claims that the June 1, 2011 sentence is illegal. He also claims that the sentence failed to credit him with the time previously served to which he is entitled.
(6) With commendable candor, the State concedes plain error and agrees that the June 1, 2011 sentence is illegal because it exceeded the 5-year, 4-month sentence imposed at Faison's first VOP on February 5, 2009. Also, the State agrees that Faison was not properly credited with time previously served at Level V incarceration and at a Level IV VOP Center.
For the same reason, the State maintains that the December 3, 2009 and January 5, 2011 VOP sentences also were illegal. See Pavulak v. State, 880 A.2d 1044, 1045-46 (Del. 2005) (providing that the sentence imposed on the defendant's first VOP "set the parameters" for the Level V sentence imposed on the defendant's second VOP).
This Order does not address the parties' only contested issue, i.e., whether Faison should receive credit for time served at Level IV Crest.
(7) The State calculates that the June 1, 2011 sentence imposed on Faison should not have exceeded 4 years, 3 months and 7 days. In view of the State's concession of plain error and the factual assertions set forth in the answering brief, the Court will vacate the June 1, 2011 sentence and remand this matter for sentencing.
The Court appreciates the State's thorough and considered recitation of Faison's history of incarceration.
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NOW, THEREFORE, IT IS ORDERED that the June 1, 2011 sentence is VACATED. This matter is REMANDED to the Superior Court to sentence Faison with the assistance of counsel. Jurisdiction is not retained. The mandate shall issue forthwith.
BY THE COURT:
Henry duPont Ridgely
Justice