IN TI-IE SUPREME COURT OF THE STATE OF DELAWARE

RAYFUS R. WI-IALEY, §
§
Defendant Below- § No. 36, 2017
Appellant, §
§
v. § Court Below--Superior Court
§ of the State of Delaware
STATE OF DELAWARE, §
§ Cr. ID 1205025447
Plaintiff Below- §
Appellee. §

Submitted: February 8, 2017
Decidecl: March 30, 2017

Before VALIHURA, VAUGHN, and SEITZ, Justices.
MR

This 30“‘ clay of March 2017, upon consideration of the appellant’s opening
brief, the State’s motion to aftirm, and the record on appeal, it appears to the Court
that:

(l) The defendant-appellant, Rayfus Whaley, filed this appeal from the
Superior Court’s order dated December 22, 2016, sentencing him for a violation of
probation (VOP). The State has filed a motion to affirm the judgment below on
the ground that it is manifest on the face of Whaley’s opening brief that his appeal
is without merit. We agree and aftirm.

(2) In December 2012, Whaley pled guilty to one count each of

Possession of a Fireann during the Commission of a Felony (“PFDCF”),

Possession of a Firearm by a Person Prohibited (“PFPP”), and Assault in the
Second Degree. The Superior Court him as follows: (i) for PFDCF, to three years
at Level V incarceration; (ii) for PFPP, to eight years at Level V incarceration, to
be suspended after serving two years in prison and upon the successful completion
of the Key Program for Level IV residential drug treatment, to suspended upon the
successful completion of treatment for eighteen months at Level III probation; and
(iii) for assault, eight years at Level V incarceration, to be suspended entirely for
eighteen months at Level III probation.

(3) In September 2016, while participating in the Crest Program at the
Morris Correctional Institute, Whaley assaulted his roommate and bit off a portion
of the other man’s earlobe. As a result, Whaley was arrested and charged with
Assault in the Second Degree and with violating his probation. On December 22,
2016, the Superior Court found that Whaley had committed a VOP and sentenced
him as follows: (i) for PFPP, to five years at Level V incarceration, to be
suspended after serving six months in prison for one year at Level IV residential
drug treatment, to be suspended upon successful completion of drug treatment for
eighteen months at Level III probation; and (ii) for assault, to eight years at Level
V incarceration, to be suspended entirely for eighteen months at Level III

probation. Whaley now appeals his VOP adjudication and sentence.

(4) In his opening brief on appeal, Whaley contends that: (i) he was
denied his due process rights at the VOP hearing; (ii) it was unfair for his probation
to be violated while his roommate, whom Whaley contends was equally culpable,
was released from DOC custody; and (iii) his counsel was ineffective for failing to
present exculpatory evidence and witnesses in his favor. The State has moved to
affirm the Superior Court’s judgment.

(5) To the extent that Whaley raises a claim of ineffective assistance of
counsel, this Court will not consider such a claim in an appeal from a VOP when
the issue was not raised to the trial court in the first instance.l Moreover, the Court
is unable to review Whaley’s other claims because Whaley failed to order and
provide the Court with a copy of the transcript of the VOP hearing and sentencing.

(6) As the Court has held many times, it is the appellant’s obligation to
supply those portions of the transcript that are necessary to give the Court a fair
and accurate account of the context in which the alleged errors arose.2 Without a
copy of the transcript of the VOP hearing and sentencing, the Court is unable to
review Whaley’s contentions that the Superior Court denied him the right to call
witnesses and present evidence and imposed an inappropriate sentence. Thus, the

Court concludes that Whaley’s failure to request and include adequate transcripts

 

l S!?Iilh v. S!a!€, 2014 WL 5421251, *2 (DCl. OCt. 23, 2014).
2 Tricoche v. Slale, 525 A.2d lSl, 154 (Del. 1987).

of the proceedings, as required by the rules of the Court, precludes appellate

review of his claims of error on appeal.3

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

Court is AFFIRMED.

BY THE COURT:

 

3 See Hawkins v. Srate, 2010 WL 3341578 (Del. Aug. 25, 2010) (holding that failure to provide
transcript of VOP hearing precludes review of argument on appeal).

