IN THE SUPRENIE COURT OF THE STATE OF DELAWARE

MATTHEW D. TRAGO, §
§ No. 609, 2014
Defendant Below, §
Appellant, §
§
V. § Court Below—Superior Court
§ of the State of Delaware,
STATE OF DELAWARE, § in and for New Castle County
§ Cr. ID No. 9607010823
Plaintiff Below, §
Appellee. §

Submitted: April 17, 2015
Decided: June 22, 2015

Before STRINE, Chief Justice; HOLLAND and VALIHURA, Justices.
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This 22Ild day of June 2015, upon consideration of the briefs of the parties
and the record below, it appears to the Court that:

(1) The appellant, Matthew D. Trago, ﬁled this appeal from the Superior
Court’s October 7, 2014 order sentencing him for his seventh Violation of
probation (“VOP”). We ﬁnd no merit to the appeal. Accordingly, we afﬁrrn.

(2) The record reﬂects that, in 1996, Trago was indicted on two counts of
Unlawful Sexual Intercourse in the First Degree and two counts of Unlawful
Contact in the Second Degree. These charges arose from Trago’s sexual contact
with a seven-year old relative. On October 29, 1996, Trago pled guilty to

Unlawful Sexual Intercourse in the Second Degree. Trago was sentenced to

twenty years of Level V incarceration, suspended after ten years for decreasing
levels of supervision.

(3) Conditions of Trago’s probation included no contact with minors, no
possession of sexually explicit or obscene material, and no intemet access.
Between 2006 and 2012, the Superior Court found that Trago violated his
probation six times. Trago did not appeal any of those VOP ﬁndings.

(4) In September 2014, Trago was arrested for his seventh VOP. A VOP
hearing was held on October 7, 2014. According to the VOP report and testimony
of his probation ofﬁcer, Trago was found in possession of two cell phones during a
home visit. One of the cell phones contained sexually explicit photographs of
adults and non-sexual photographs of children and had intemet access.

(5) The GPS monitor Trago was required to wear showed that Trago had
visited the house of a ﬁiend in Newark. When a probation ofﬁcer visited the
house, he learned that a nine-year old child lived there. The child was shown a
photograph of Trago and identiﬁed Trago as spending time with her uncle.

(6) Trago admitted to violating his probation, but tried to downplay the
violations. According to Trago, he did not know a child lived in the house he was
visiting and he left the house when he saw the child approaching the house. Trago
also claimed the cell phone with sexually explicit photographs and texts belonged

to his wife, although he admitted to possessing the phone and using the phone to

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send texts. The Superior Court found that Trago had violated his probation and
sentenced him to ﬁve years of Level V incarceration, suspended after four years
for decreasing levels of supervision. This appeal followed.

(7) On appeal, Trago claims that: (i) there was insufﬁcient evidence to
support a ﬁnding that he had contact with a child or used his wife’s cell phone to
send sexually explicit text messages; (ii) his due process rights were violated by his
probation ofﬁcer obtaining the child’s identiﬁcation based on a single photograph;
(iii) he was denied his Sixth Amendment right to conﬁont the child (who did not
attend the VOP hearing); and (iv) the probation ofﬁcer should not have referred to
two of Trago’s previous VOPs, which involved contact with a three—year old child
and failure to comply with GPS monitoring, because Trago was already punished
for those VOPs. We conclude that these arguments are without merit.

(8) To support his insufﬁcient evidence argument, Trago claims that no
GPS evidence was submitted to show he actually had contact with a child and no
evidence was submitted to show that he used his wife’s cell phone to send sexually
explicit text messages. In a VOP hearing, unlike a criminal trial, the State is only
to prove by a preponderance of the evidence that the defendant violated the terms
of his probation.1 The State “need only present ‘some competent evidence’ to

prove the violation asserted and to reasonably satisfy the VOP judge that the

1 Kurzmann v. State, 903 A.2d 702, 716 (Del. 2006).

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probationer’s conduct has not been as good as required under the conditions of

probation.”2 The rules of evidence are relaxed in a VOP hearing and hearsay
evidence is admissible.3

(9) Conditions to Trago’s probation included no contact with children, no
possession of sexually explicit or obscene material, and no internet access.
Although Trago denies having contact with a child or using a cell phone to send
sexually explicit texts, he admitted to violating his probation at the VOP hearing.
Trago does not dispute that he possessed a cell phone with internet access that
contained sexually explicit photographs and that he used the phone to send text
messages. There was also testimony that the child who lived in a house Trago
admits to visiting identiﬁed Trago as spending time with her uncle. The Superior
Court’s ﬁnding that Trago violated his probation was supported by sufﬁcient
evidence.

(10) Because Trago did not raise a due process claim at the VOP hearing
regarding the child’s identiﬁcation of him, we review this claim for plain error.4
Under the plain error standard of review, “the error complained of must be so

clearly prejudicial to substantial rights as to jeopardize the fairness and integrity of

21d. at717.
31d. at716.

4 Supr. Ct. R. 8.

the trial process.”5

Trago does not cite any authority in support of his due process
argument. At his VOP hearing, Trago admitted that he violated his probation.
Trago has not shown any plain error in the child’s identiﬁcation of him.

(11) Trago’s claim that he was deprived of his Sixth Amendment right to
confront the child at the VOP hearing is also subject to plain error review.6 There
is no plain error here. Trago had the opportunity to cross-examine the probation
ofﬁcer regarding the child’s identiﬁcation and admitted that he violated his
probation at the VOP hearing.

(12) Like the previous claims, Trago’s claim that his probation officer
should not have described two of Trago’s previous VOPs at the VOP hearing is
subject to plain error review. The probation ofﬁcer described the previous VOPs
when he explained his recommendation for Trago’s VOP sentence. The Superior
Court judge could consider evidence of other VOPs in making his sentencing

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determination. The probation ofﬁcer’s references to Trago’s previous VOPs do

not constitute plain error.

5 Wainwright v. State, 504 A.2d 1096, 1100 (Del. 1986).
6 Supr. Ct. R. 8.

7 Walsh v. State, 2012 WL 6018707, at *2 (Del. 3, 2012) (citing Kurzmarm v. State, 903 A.2d
702, 717 (Del. 2006)).

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

Court is AFFIRMED.

BY THE COURT:

/s/Ranc_z‘y .1 Holland

Justice

