               IN THE SUPREME COURT OF THE STATE OF DELAWARE

LYNETTE SMITH,                          §
                                        §
          Defendant Below,              §   No. 346, 2014
          Appellant,                    §
                                        §
          v.                            §   Court Below—Superior Court
                                        §   of the State of Delaware,
STATE OF DELAWARE,                      §   in and for New Castle County
                                        §   Cr. ID No. 1206011052
          Plaintiff Below,              §
          Appellee.                     §

                             Submitted: September 29, 2014
                             Decided:   October 23, 2014

Before HOLLAND, RIDGELY, and VALIHURA, Justices.

                                      ORDER

          This 23rd day of October 2014, upon consideration of the appellant’s

opening brief, the appellee’s motion to affirm, and the record below, it appears to

the Court that:

          (1)    The appellant, Lynette Smith, filed this appeal from the Superior

Court’s sentence for her second violation of probation (“VOP”). The State of

Delaware has filed a motion to affirm the judgment below on the ground that it is

manifest on the face of Smith’s opening brief that her appeal is without merit.1 We

agree and affirm.


1
    Supr. Ct. R. 25(a).
      (2)   The record reflects that Smith was indicted for Theft and multiple

counts of Unlawful Use of a Credit Card in November 2012. On March 26, 2013,

Smith pled guilty to Theft. The Superior Court immediately sentenced Smith to

three years of Level V incarceration, suspended for one year of Level III probation

and six months of Level II probation. Smith was also required to pay restitution,

undergo evaluation for substance abuse, and follow any recommendations for

substance abuse treatment. Smith did not appeal.

      (3)   On January 8, 2014, an administrative warrant charging Smith with

her first VOP was issued. The charges included failure to report to the probation

officer as directed, positive drug tests for cocaine, and failure to comply with

substance abuse treatment. On February 19, 2014, the Superior Court found Smith

in violation of her probation. Smith was sentenced to three years of Level V

incarceration, suspended for eighteen months of Level IV home confinement,

suspended after sixth months for Level III probation. Smith did not appeal.

      (4)   On June 4, 2014, an administrative warrant charging Smith with her

second VOP was issued.       The charges included use of cocaine and multiple

unauthorized leaves from home confinement. Smith appeared before the Superior

Court on June 18, 2014. The Superior Court found Smith in violation of her

probation. Smith was sentenced to three years of Level V incarceration, suspended

after successful completion of the Key program for two years of Level IV


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supervision, suspended after successful completion of the Level IV Crest program

for Level III Crest Aftercare. This appeal followed.

          (5)     In her opening brief, Smith claims: (i) she was denied the right to

present witnesses on her behalf and otherwise defend herself at the VOP hearing;

(ii) there were medical reasons for her failure to return home by curfew; (iii) her

counsel was ineffective; (iv) she was sentenced based on her juvenile and adult

criminal history without a pre-sentence investigation; (v) she was coerced into

making a statement and the probation officer committed perjury; and (vi) the

sentence was excessive and too harsh. We find no merit to these arguments.

          (6)     Smith did not seek to present any witnesses at the VOP hearing.

Appellate review of Smith’s claim that she was denied the right to present

witnesses is therefore waived absent plain error.2 There is no indication Smith

sought the presence of the witnesses identified in her opening brief at the VOP

hearing or to present testimony of those witnesses on her behalf. The record

reflects that Smith was represented by counsel at the VOP hearing, spoke on her

own behalf, and admitted to violating the terms of her probation. Under these

circumstances, there is no merit to Smith’s claim that she was denied the right to

present witnesses or to defend herself at the VOP hearing.



2
    Supr. Ct. R. 8.

                                            3
          (7)    Smith appears to claim that several of her curfew violations should be

excused because those violations occurred while she was recovering from knee

surgery and unable to return to her home by curfew. Smith did not make this

argument at her VOP hearing. At the VOP hearing, Smith admitted to using

cocaine and leaving her apartment without authorization to take out the trash or

babysit for a friend.

          (8)    In a VOP hearing, unlike a criminal trial, the State is only required to

prove by a preponderance of the evidence that the defendant violated the terms of

his/her probation.3 A preponderance of the 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.”4 Regardless of

Smith’s new explanations for her curfew violations, Smith’s admission at the VOP

hearing to using cocaine constituted sufficient competent evidence to revoke her

probation.5 As for Smith’s claim that her appointed counsel was ineffective, this

Court will not consider that claim for the first time on this direct appeal.6



3
    Kurzmann v. State, 903 A.2d 702, 716 (Del. 2006).
4
    Id. (quoting Collins v. State, 897 A.2d 159, 160 (Del. 2006)).
5
    Collins v. State, 897 A.2d at 160.
6
 Barnes v. State, 2014 WL 60963, at *1 (Del. Jan. 7, 2014); Desmond v. State, 654 A.2d 821,
829 (Del. 1994).

                                                   4
         (9)     Smith’s attacks on her sentence are also without merit. This Court’s

appellate review of a sentence is extremely limited and generally ends upon a

determination that the sentence is within the statutory limits prescribed by the

legislature.7 If the sentence is within statutory limits, the sentence will not be

disturbed on appeal unless the defendant can establish that the sentencing judge

relied on impermissible factors or exhibited a closed mind.8

         (10) Smith complains that the Superior Court sentenced her based on her

juvenile and adult criminal record, but the transcript of the VOP hearing reflects

that the Superior Court was most concerned by her cocaine use. Smith also fails to

identify any authority in support of her contention that the Superior Court was

required to obtain a pre-sentence investigation before sentencing her for her second

VOP. As far as the length of Smith’s sentence, the Superior Court could impose

any period of incarceration up to and including the balance of the Level V time

remaining on the February 19, 2014 sentence (three years).9 The Superior Court

did not exceed that amount of time in imposing a Level V sentence of three years,

which was suspended for decreasing levels of supervision after Smith’s successful

completion of the Key program.

7
    Kurzmann, 903 A.2d at 714.
8
    Weston v. State, 832 A.2d 742, 746 (Del. 2003).
9
    11 Del. C. § 4334(c); Pavulak v. State, 880 A.2d 1044, 1046 (Del. 2005).

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      (11) Finally, Smith fails to substantiate her conclusory statements that she

was coerced into making a statement and that her probation officer committed

perjury at the VOP hearing. In the absence of any evidence or argument in support

of these conclusory statements, we conclude that Smith’s coercion and perjury

claims are without merit.

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

GRANTED and the judgment of the Superior Court is AFFIRMED.


                                            BY THE COURT:

                                            /s/ Henry duPont Ridgely
                                            Justice




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