Opinion
No. 67, 2003.
Submitted: March 3, 2003.
Decided: April 8, 2003.
Court Below-Superior Court of the State of Delaware, in and for New Castle County Cr. ID. No. 9602012050
Affirmed.
Unpublished opinion is below.
LAVAR S. SIENA, Defendant Below-Appellant, v. STATE OF DELAWARE, Plaintiff Below-Appellee. No. 67, 2003. Supreme Court of Delaware. Submitted: March 3, 2003. Decided: April 8, 2003.
Before VEASEY, Chief Justice, HOLLAND and STEELE, Justices
Myron T. Steele, Justice
ORDER
This 8th day of April 2003, upon consideration of the appellant's opening brief and the appellee's motion to affirm pursuant to Supreme Court Rule 25(a), it appears to the Court that:
(1) The defendant-appellant, Lavar S. Siena, filed an appeal from the Superior Court's January 24, 2003 order denying his motion for modification of sentence. The plaintiff-appellee, the State of Delaware, has moved to affirm the judgment of the Superior Court on the ground that it is manifest on the face of Woods' opening brief that the appeal is without merit. We agree and AFFIRM.
(2) In September 1996, Siena pleaded guilty to three counts of Robbery in the First Degree, one count of Possession of a Firearm During the Commission of a Felony and one count of Assault in the First Degree. He was sentenced to a total of 19 years incarceration at Level V, to be suspended after 13 years for decreasing levels of probation. The sentencing order provided that Siena's 7-year Level V sentence for assault was to be suspended after 1 year for an additional year at "Supervision Level 4 — Halfway House or Inpatient Substance Abuse Treatment." The sentencing order also contained the condition that Siena would be assigned to the Residential and Outpatient Drug/Alcohol Programs until such programs were completed.
(3) In this appeal, Siena claims that, because he has no history of alcohol or drug abuse, the Superior Court abused its discretion by requiring him to participate in residential and outpatient substance abuse treatment.
(4) Siena's claim is without merit. In order to demonstrate an abuse of discretion on the part of the sentencing judge, Siena must show that the judge based the sentence on false factual predicates or was biased or vindictive. The record reveals no bias or vindictiveness on the part of the Superior Court and, moreover, reflects that Siena was charged previously with drug offenses.
Bowersox v. State, ___ A.2d ___, 2003 WL 1344849 (Del. 2003).
(5) It is manifest on the face of Siena's opening brief that this appeal is without merit because the issues presented on appeal are controlled by settled
Delaware law and, to the extent that judicial discretion is implicated, clearly there was no abuse of discretion.
NOW, THEREFORE, IT IS ORDERED that, pursuant to Supreme Court Rule 25(a), the State of Delaware's motion to affirm is GRANTED. The judgment of the Superior Court is AFFIRMED.