           IN THE SUPREME COURT OF THE STATE OF DELAWARE

WARDELL GILES,                         §
                                       §      No. 6, 2017
      Defendant Below,                 §
      Appellant,                       §      Court Below–Superior Court of the
                                       §      State of Delaware
      v.                               §
                                       §      Cr. ID No. 0707010864
STATE OF DELAWARE,                     §
                                       §
      Plaintiff Below,                 §
      Appellee.                        §

                          Submitted: August 11, 2017
                          Decided:   October 25, 2017

Before STRINE, Chief Justice; VALIHURA and SEITZ, Justices.

                                     ORDER

      This 25th day of October 2017, upon consideration of the parties’ briefs and

the Superior Court record, it appears to the Court that:

      (1)    In a Superior Court criminal case in 2007, the appellant, Wardell Giles,

pled guilty to robbery in the second degree and was sentenced to five years of Level

V incarceration immediately suspended for six months of Level IV work release or

home confinement followed by three years and six months of Level III probation.

This appeal is from Giles’ adjudication of guilt and sentencing in 2016 on his sixth

violation of probation (“VOP”).

      (2)    The VOP charge against Giles arose from an incident at the Sussex

Community Corrections Center (“SCCC”) in Georgetown. The SCCC facility
houses several correctional programs, including the Sussex VOP Center and the

Sussex Work Release Center. Giles was transferred to the VOP Center in April 2016

to serve the sentence imposed on his fifth VOP.

      (3)    Giles was assigned to the kitchen work crew at the SCCC and was

working with the crew at the Work Release Center on the morning of August 25,

2016. Giles’ duties that morning included reaching through a partially-opened

window to retrieve food trays. Correctional Officer Michael Megee was supervising

the inmates in the Work Release Center and was standing a few feet away from the

window when he observed someone reach through the window and grab the wrist of

an inmate, Jennifer Moore, as she returned her tray. Officer Megee immediately

opened the window to confront the person, who turned out to be Giles. Office Megee

removed Giles to the holding cell at the Work Release Center. Upon questioning by

Officer Megee, Giles denied that he touched Moore. Officer Megee then transferred

Giles to the sanction pod at the VOP Center.

      (4)    As a result of the incident on August 25, 2016, Giles was terminated

from the kitchen crew and was charged with three VOP Center program violations:

lying to staff, termination of employment, and inappropriate touching of the opposite

sex. The violations were heard by the SCCC VOP Center Multi-Disciplinary Team

(“MDT”) on August 30, 2016, and on September 6, 2016, the MDT recommended

that Giles should be returned to a higher level of security and charged with a VOP.

                                         2
After the MDT’s recommendation was approved by the head of the SCCC, Amber

Welch, a Senior Probation Officer at the VOP Center, filed an administrative warrant

on September 8 2016, and a violation report on September 12, 2016.

      (5)    The administrative warrant and violation report alleged that Giles had

violated Condition #3 of his supervision by failing to “abide by all the rules and

regulations of the county community correction center and/or the residential

treatment program as described in the orientation manual.” In support of the alleged

violation of Condition #3, the warrant and report described the factual circumstances

of the August 25, 2016 incident involving Giles, the alleged program violations that

followed, Giles’ appearance before the MDT, and the MDT’s recommendation.

Moreover, both the warrant and the report charged that “Giles’ behavior

demonstrates failure to comply with [Condition #3] and with the Rules and

Regulations of Sussex Community Corrections Center, which [Giles] signed for and

acknowledged receipt of on [April 27, 2016].”

      (6)    The Superior Court held a contested VOP hearing on October 14, 2016.

The evidence against Giles included the testimony of Officer Megee and Officer

Welch, a video recording of the incident on August 25, 2016—namely, Giles’

alleged improper contact with Moore at the tray return window, and Giles’ signed

receipt acknowledging that he received the SCCC orientation manual on April 27,

2016. Officer Welch testified that the orientation manual included the rules and

                                         3
regulations of the VOP Center. Giles’ defense counsel cross-examined both Officers

Megee and Welch, presented the direct testimony of Giles, and submitted two letters

that Moore allegedly kited to Giles, one during the incident on August 25, 2016, and

the other after that date. Giles testified that he and Moore were friends and

frequently kited letters to each other. According to Giles, he would pass letters to

Moore at dinner between slices of bread, and Moore would pass letters to him at

breakfast when returning her food tray. Giles testified that his contact with Moore

on August 25, 2016 occurred when she passed him the letter as she was returning

her tray. Giles testified that he did not tell Office Megee about the letter, because he

did not want to get Moore into trouble.

         (7)     At the conclusion of the hearing, the Superior Court found Giles guilty

of VOP. The court deferred sentencing and ordered a presentence report to get an

accurate accounting of Giles’ time-served credit and the amount of Level V time

remaining on his sentence.1 On December 9, 2016, the Superior Court sentenced

Giles to one year and eight days of Level V incarceration suspended after six months

for six months of Level IV home confinement or work release. This appeal followed.




1
    Hr’g Tr. at 77–81 (Oct. 14, 2016).
                                             4
       (8)    Giles raises four claims on appeal. He characterizes two claims as

violations of due process, challenges the admissibility and sufficiency of the

evidence against him at the VOP hearing, and argues that his counsel was ineffective.

       (9)    Giles’ ineffective counsel claim is not reviewable in this Court in the

first instance.2 And, because Giles did not raise his due process claims in the

Superior Court, he has waived review of those claims on appeal in the absence of

plain error.3 Plain error is error so clearly prejudicial to substantial rights as to

jeopardize the fairness and integrity of the proceedings.4

       (10) Giles claims that he was not given adequate notice of the charge of VOP

and the evidence against him because, at the hearing, the prosecution’s evidence

included the rules and regulations of the Work Release Center, which did not apply

to him. His claim is without merit. Both the administrative warrant and the violation

report provided Giles with written notice that he was charged with VOP as a result

of the incident at the Work Release Center on August 25, 2016 when he allegedly

inappropriately touched a female inmate, lied to Officer Megee, and was terminated

from his kitchen crew job, in violation of the rules and regulations of the VOP




2
  Smith v. State, 2014 WL 5421251, at *2 (Del. Oct. 23, 2014) (citing Desmond v. State, 654 A.2d
821, 829 (Del. 1994)).
3
  Bungy v. State, 2013 WL 5745871, at *2 (Del. Oct. 21, 2013) (citing Kurzmann v. State, 903
A.2d 702, 709, 719 (Del. 2006)).
4
  Id. (citing Wainwright v. State, 504 A.2d 1096, 1100 (Del. 1986)).
                                               5
Center, which were included in the SCCC orientation manual that Giles signed for

and acknowledged receipt of on April 27, 2016.

       (11) Giles claims that he was denied due process at sentencing because the

presentence report ordered by the Superior Court was not prepared and that, without

that report, the court was without the accounting it said it needed of the time-served

credit to which Giles was entitled. On plain error review, Giles has not demonstrated

that he was prejudiced by the lack of a presentence report. The Superior Court

ordered the report, in its discretion, to get an accurate accounting of the time-served

credit to which Giles was entitled and the length of Level V time remaining on his

sentence. At the sentencing hearing, the court advised the parties that it had received

the time-served credit calculation, and that Giles was entitled to 284 days of credit.5

Neither Giles nor his counsel objected to the amount of time-served credit the court

indicated would be applied to the impending VOP sentence, and Giles has not

explained on appeal how that calculation was incorrect.

       (12) In his third claim on appeal, Giles challenges the admissibility and

sufficiency of the evidence at the VOP hearing. The claim is without merit. In a

VOP proceeding, the prosecution must prove by a preponderance of the evidence

that the defendant committed a violation of probation.6 A preponderance of the


5
 Hr’g Tr. at 2 (Dec. 9, 2016).
6
 Kurzmann v. State, 903 A.2d 702, 716 (Del. 2006) (citing Weaver v. State, 779 A.2d 254, 259
(Del. 2001)).
                                             6
evidence means “some competent evidence” to “reasonably satisfy the judge that the

conduct of the probationer has not been as good as required by the conditions of

probation.”7

          (13) The evidence against Giles included (i) the hearing testimony of Officer

Megee and Officer Welch; (ii) the video recording of the August 25, 2016 incident;

(iii) Giles’ written acknowledgement that he received the SCCC orientation manual,

which included the VOP Center rules and regulations, on April 27, 2016; (iv) Giles’

admission that he lied to Officer Megee on August 25, 2016; and (v) Giles’

admission that he had prohibited contact with Moore on August 25, 2016, when

Moore used her food tray to kite a letter to Giles as part of their ongoing and mutual

exchanging of notes. Consequently, even assuming that the prosecution relied in

error on the Work Release Center rules and regulations to supports its case against

Giles, the record reflects the existence of other competent evidence that was

sufficient to revoke Giles’ probation.

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

Court is AFFIRMED.

                                                BY THE COURT:
                                                /s/ Leo E. Strine, Jr.
                                                Chief Justice



7
    Id. (quoting Collins v. State, 897 A.2d 159, 160 (Del. 2006)).
                                                   7
