IN THE SUPREME COURT OF THE STATE OF DELAWARE

WILLIAM D. SMITH, §
§
Defendant Below, § No. 608, 2014
Appellant, - §
§
V. § Court Below—Superior Court
§ of the State of Delaware,
STATE OF DELAWARE, § in and for Sussex County
'§ Cr. ID No. 1001004287
Plaintiff Below, §
Appellee. §

Submitted: December 22, 2014
Decided: January 20, 2015

Before STRINE, Chief Justice, HOLLAND, and VALIHURA, Justices.
w

This 20th day of January 2015, upon consideration of the appellant’s opening
brief, the appellee’s motion to afﬁrm, and the record below, it appears to the Court
that:

(l) The appellant, William Smith, ﬁled this appeal from the Superior
Court’s October 10, 2014 order sentencing him for his second Violation of
probation (“VOP”). The State of Delaware has moved to afﬁrm the Superior
Court’s judgment on the ground that it is manifest on the face of Smith’s opening

brief that the appeal is without merit.1 We agree and afﬁrm.

1 Supr. Ct. R. 25(a).

(2) The record reﬂects that, in May 2010, Smith was charged by
information with multiple sexual offenses involving a minor, including Rape in the
First Degree. On June 9, 2010, Smith pled guilty to one count of Rape in the
Fourth Degree. Smith was sentenced to ﬁfteen years of Level V incarceration,
with credit for 369 days previously served, suspended after successful completion
of the Level V Family Problems program for six months of Level IV Home
Conﬁnement, followed by three years of Level III probation. Conditions of the
sentence included evaluation for and participation in a sex offenders program
deemed appropriate by a probation ofﬁcer and no contact with any minor under the
age of eighteen. Smith did not appeal.

(3) After Smith completed the Level V Family Problems program, his
Level IV sentenced was modiﬁed to Home Conﬁnement or the VOP center. On
January 21, 2014, an administrative warrant was ﬁled for Smith’s ﬁrst VOP. The
warrant alleged that a probation ofﬁcer found a minor in the house during a home
Visit. On January 30, 2014, the Superior Court found that Smith had violated his
probation. Smith was sentenced to twelve years of Level V incarceration,
suspended for ninety days at Level IV VOP, followed by three years of Level III
probation. Smith did not appeal.

(4) On October 1, 2014, an administrative warrant was ﬁled for Smith’s

second VOP. The warrant alleged that Smith had been unsuccessfully discharged

from a sex offender treatment program and had failed to attend a meeting. The
violation report alleged that Smith was late multiple times for sex offender
treatment group meetings and had missed multiple group meetings since he was
directed to attend weekly group sessions in April 2014. On October 10, 2014, the
Superior Court found Smith had violated his probation and sentenced him to
eleven years and six months of Level V incarceration, suspended after successful
completion of the Level V Transitions Sex Offender Program for three years of
Level III probation. This appeal followed.

(5) In his opening brief on appeal, Smith contends that he missed a few
mandatory program meetings because he was having problems with medications
he was taking for mental disabilities known to the Superior Court and that he
should not have been sentenced Without a psychological evaluation. These
contentions are without merit.

(6) To the extent Smith claims that there was insufﬁcient evidence to
support the Superior Court’s VOP ﬁning because problems with his medications
prevented him from attending mandatory program meetings, the Court has no
adequate basis to review this claim. Smith designated a transcript of the October

10, 2014 VOP hearing in his notice of appeal, but did not follow the processes to

obtain a transcript and no transcript provided to the Court.2 In the absence of a
transcript, the Court cannot review a claim of insufﬁcient evidence or of other
errors in a VOP hearing.3 Moreover, Smith admits in his opening brief that he
missed mandatory program meetings. Under these circumstances, we conclude
that the Superior Court did not err in ﬁnding Smith violated his probation.

(7) As to Smith’s claim that he should not have been sentenced for his
VOP without a psychological evaluation, he does not identify anything requiring
such an evaluation. The Superior Court could impose any period of incarceration
up to and including the balance of the Level V time remaining on Smith’s
sentence.4 As of January 30, 2014, after his ﬁrst VOP, Smith was sentenced to
twelve years of Level V incarceration, suspended for ninety days at Level IV VOP,
followed by three years of Level III probation. On October 10, 2014, after his

second VOP, Smith was sentenced to eleven years and six months of Level V

2 With his notice of appeal, Smith ﬁled an on opening brief, directions to the court reporter for
transcription of the VOP hearing, and a motion to proceed in forma pauperis. The Senior Court
Clerk informed Smith by letter that if he wished to designate a transcript at State expense, he
needed to: (i) submit an application to the Sussex County Prothonotary’s Ofﬁce and ﬁle a copy
of the application with the Court by November 12, 2014; and (ii) send a copy of the designation
of transcript to the Sussex County Court Reporter’s Ofﬁce and ﬁle a proof of service by the
Court by November 12, 2014. Smith was told that if he did not comply with these procedures

the appeal would proceed without a transcript. No application or proof of service of designation
of transcript was ﬁled with the Court.

3 Lopez v. State, 2013 WL 458174, at *1 (Del. Feb. 5, 2013) (citing T ricoche v. State, 525 A.2d
151, 154 (Del. 1987)).

4 11 Del. C. § 4334(c); Pavulak v. State, 880 A.2d 1044, 1046 (Del. 2005).

4

incarceration, suspended after successful completion of the Level V Transitions
Sex Offender Program for three years‘ of Level III probation. The Level V time in
this sentence did not exceed the amount of Level V time previously imposed and

was Within statutory limits.

NOW, THEREFORE, IT IS ORDERED that the motion to afﬁrm is

GRANTED and the judgment of the Superior Court is AFFIRMED.

BY THE COURT:

. ﬁjﬂxW

ustice

