IN THE SUPREME COURT OF THE STATE OF DELAWARE
JABARI H. CAMPBELL,
STATE OF DELAWARE,
No. 78, 2011
Court Below—Superior Court
of the State of Delaware,
in and for New Castle County
Cr. ID 0802011891
Submitted: May 13, 2011
Decided: July 11, 2011
Before HOLLAND, BERGER, and JACOBS, Justices.
This 11th day of July 2011, upon consideration of the parties’ briefs
and the record below, it appears to the Court that:
On February 16, 2011, the appellant, Jabari Campbell, filed this
appeal from the Superior Court’s order, dated January 19, 2011, denying his
motion for correction of sentence.
While the appeal was pending, the
Superior Court attempted to vacate its January 19, 2011 order and issue a
corrected sentencing order on February 22, 2011.
Given the Superior
Court’s lack of jurisdiction to vacate an order from which an appeal had
properly been perfected to this Court, we conclude that this matter must be
remanded to the Superior Court for further action consistent with this Order.
The record reflects that Campbell pled guilty on May 12, 2008
to one count each of receiving stolen property and resisting arrest. The
Superior Court immediately sentenced Campbell on the receiving stolen
property conviction to one year at Level V incarceration, with credit for 94
days previously served, to be suspended immediately for one year at Level I
probation (restitution only). The Superior Court did not impose any Level V
sentence on Campbell with respect to his resisting arrest conviction.
At the time of his May 2008 sentencing, Campbell already was
serving a probationary sentence for a 2007 conviction for receiving stolen
property. His 2008 conviction on the new charges led to a violation of
probation sentence with respect to the 2007 conviction.
Campbell picked up new criminal charges in 2009. He pled guilty in April
2009 to one count of attempted second degree robbery and was sentenced on
that conviction to three years at Level V incarceration, to be suspended after
serving six months in prison for thirty months at Level IV home
confinement, to be suspended after serving six months at Level IV for two
years at Level III probation.
As a result of his 2009 conviction, Campbell was found guilty
of violating his 2008 probation. The Superior Court sentenced Campbell on
the VOP to eighteen months at Level V incarceration, to be suspended after
serving sixteen months in prison for two months at Level IV work release,
followed by an additional twelve months at Level I probation (restitution
only). Campbell filed a motion for correction of sentence, arguing that the
VOP sentence exceeded the amount of Level V time remaining on his
original one-year sentence for which he was also given 94 days credit for
The Superior Court denied Campbell’s motion for correction of
sentence and, instead, issued an amended VOP sentencing order reimposing
eighteen months at Level V incarceration, to be suspended after serving
sixteen months in prison for two months at Level IV work release, followed
by an additional twelve months at Level I probation (restitution only). The
“amendment” to the sentencing order added a provision declaring Campbell
to be a habitual offender and purported to vacate a prior sentencing order
dated August 26, 2010.1 It is from this order that Campbell appeals.2
Upon review, it is manifest to this Court that the Superior Court
erred in denying Campbell’s motion for correction of sentence. A violation
The Superior Court docket does not reflect that a sentencing order was issued on August 26, 2010 in this
The State’s answering brief, for reasons that are not apparent to this Court, is based upon the incorrect
premise that Campbell filed this appeal from the denial of a habeas corpus petition. Consequently, the
State’s nonresponsive answering brief provides no assistance to the Court in clarifying the errors that
appear to have occurred this matter.
of probation sentence cannot exceed the amount of Level V time remaining
to be served on the original sentence.3 In this case, Campbell originally was
sentenced to one year at Level V, with credit for 94 days previously served,
which was suspended entirely for probation.
Accordingly, at the most,
Campbell had 271 days remaining to be served on the original sentence,
assuming he had not served any other time at Level V or the Level IV VOP
Center awaiting disposition of his VOP charge.4
The Superior Court’s
January 19, 2011 order, which sentenced Campbell to eighteen months at
Level V incarceration, to be suspended after serving sixteen months in
prison for two months at Level IV work release, followed by an additional
twelve months of probation, clearly was illegal.
Although the Superior Court attempted to rectify its error by
vacating the January 19, 2011 order and issuing a new sentencing order on
February 22, 2011, it lacked jurisdiction to do so because Campbell had
timely filed this appeal on February 16, 2011. Thus, the Superior Court’s
February 22, 2011 order has no legal effect. Moreover, in remanding this
case to the Superior Court for further action, we note that the sentencing
Pavulak v. State, 880 A.2d 1044, 1045-46 (Del. 2005).
The Court simply is unable to determine from the record before us if Campbell may be entitled to
additional credit for time served on this sentence. On remand, the Superior Court must make this
determination in resentencing Campbell.
order it attempted to issue on February 22, 2011 also appears to be illegal.
While the February 22, 2011 order purports to sentence Campbell to 318
days at Level V incarceration, the maximum sentence Campbell could have
received for violating probation in this case was 271 days. Thus, on remand,
the Superior Court is directed to vacate its January 19, 2011 sentencing order
and to resentence Campbell, giving him proper credit for all time previously
served, to no more than 271 days at Level incarceration or any lesser period
of time deemed appropriate.
NOW, THEREFORE, IT IS ORDERED that the judgment of the
Superior Court is REVERSED. This matter is REMANDED for further
proceedings consistent with this order. Jurisdiction is not retained.
BY THE COURT:
/s/ Carolyn Berger