IN THE SUPREME COURT OF THE STATE OF DELAWARE
JOSEPH L. MITCHELL, §
§ No. 18, 2015
Defendant Below, §
Appellant, § Court Below—Superior Court
§ of the State of Delaware in and
v. § for Kent County
§
STATE OF DELAWARE, § Cr. ID No. 0404002077
§
Plaintiff Below, §
Appellee. §
Submitted: February 6, 2015
Decided: March 23, 2015
Before HOLLAND, VALIHURA and VAUGHN, Justices.
ORDER
This 23rd day of March 2015, upon consideration of the appellant’s opening
brief, the appellee’s motion to affirm, and the Superior Court record, it appears it
appears to the Court that:
(1) The appellant, Joseph L. Mitchell, filed this appeal from his
conviction and sentence in the Superior Court for having violating the conditions
of Level IV Home Confinement. On appeal, the appellee, State of Delaware, has
filed a motion to affirm the Superior Court’s judgment on the ground that it is
manifest on the face of Mitchell’s opening brief that the appeal is without merit.1
We agree and affirm.
(2) The record reflects that Mitchell pled guilty in 2004 to Trafficking in
Cocaine and was sentenced to twenty years of Level V incarceration suspended
after nine years for eighteen months of Level III probation. In 2011, the Superior
Court modified the sentence to require that Mitchell complete the Key Program at
Level V and the Crest Program at Level IV before serving twelve months of Level
III probation.
(3) On October 3, 2014, Mitchell was found guilty, for the second time,
of violating the conditions of Level III probation and was resentenced to fourteen
years at Level V incarceration suspended for six months at Level IV Home
Confinement followed by one year at Level III probation. One month later, on
November 3, 2014, Mitchell’s probation officer issued an administrative warrant
alleging that Mitchell had violated the conditions of Level IV Home Confinement.
In the violation report that followed, Mitchell’s probation officer alleged that
Mitchell “was not at home . . . when home visits were conducted” on October 29,
30 and 31, 2014, including when the probation officer “attempted to install the
Home Confinement equipment” at Mitchell’s residence on October 29, 2014,” and
that Mitchell “did not have permission to be out during [those] hours.”
1
Del. Supr. Ct. R. 25(a).
2
(4) At a contested violation hearing on December 19, 2014, Mitchell was
found guilty of violating the conditions of Level IV Home Confinement and was
resentenced to fourteen years at Level V suspended after six months for one year at
Level III followed by one year at Level II. This appeal followed.
(5) The Court notes that Mitchell did not request the preparation of the
hearing transcript, which he was required to do as the appealing party.2 Generally,
the failure to include adequate transcripts of the trial court proceedings precludes
appellate review of claims of error occurring in those proceedings.3
(6) Mitchell devotes most of his opening brief to a claim that his due
process rights were violated when he was not brought before a magistrate to
determine bail. Mitchell’s claim is without merit. The record reflects that the
Superior Court ordered that Mitchell should be held without bail until the violation
hearing. Under 11 Del. C. 4334(b), the court has discretion to set bail for a
defendant arrested for having violated conditions of supervision.4
(7) Mitchell also claims that his due process rights were violated when he
did not receive written notice of the alleged violation and was not advised that he
had the right to retain counsel for the violation hearing, as required by Superior
2
Tricoche v. State, 525 A.2d 151, 154 (Del. 1987).
3
Id.
4
11 Del. C. § 4334(b).
3
Court Criminal Rule 32.1.5 Without a transcript of the December 19, 2014
hearing, this Court cannot discern whether Mitchell raised his claims in the
Superior Court. In any event, Mitchell does not contend that he did not have actual
notice of the alleged violation or that he was unprepared to address the violation at
the hearing on December 19, 2014. Under these circumstances, the Court
concludes that Mitchell’s due process claims are without merit.6
(8) Mitchell next alleges that his probation officer was biased against
him, and that a “curfew violation” should not have led to a revocation of Level IV
Home Confinement. Mitchell’s claims are without merit. There is no support in
the record for Mitchell’s claim that his probation officer was biased against him.
To the extent Mitchell claims that there was insufficient evidence to support a
finding that he violated the conditions of Level IV Home Confinement, this Court
cannot review that claim without reviewing the transcript of the December 19,
5
See Del. Super. Ct. Crim. R. 32.1 (providing that a person taken into or held in custody for an
alleged violation of partial confinement or probation shall receive written notice of the alleged
violation; disclosure of the evidence against the person; an opportunity to appear and present
evidence; the opportunity to question adverse witnesses; and notice of the right to retain
counsel).
6
Jenkins v. State, 8 A.3d 1147, 1153-54 (Del. 2010) (holding that defendant having actual notice
of alleged violation of probation could not complain that he did not receive written notice).
Knight v. State, 2006 WL 1805865, at ¶ 7 (Del. June 28, 2006) (concluding that due process
claim for lack of written notice was without merit in the absence of any indication that the
probationer or his counsel was unaware of or unprepared to address the alleged violation of
probation).
4
2014 violation hearing.7 Generally, in a violation hearing, the State is only
required to prove by a preponderance of the evidence that the defendant violated
the terms of his supervision.8 A preponderance of 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.”9
(9) Finally, Mitchell makes a conclusory allegation that his defense
counsel at the violation hearing was ineffective. Mitchell’s claim is not reviewable
on direct appeal.10
NOW, THEREFORE, IT IS ORDERED that the motion to affirm is
GRANTED. The judgment of the Superior Court is AFFIRMED.
BY THE COURT:
/s/ Karen L. Valihura
Justice
7
Lopez v. State, 2013 WL 458174, at *1 (Del. Feb. 5, 2013) (citing Tricoche v. State, 525 A.2d
151, 154 (Del. 1987)).
8
Kurzmann v. State, 903 A.2d 702, 716 (Del. 2006).
9
Id. (quoting Collins v. State, 897 A.2d 159, 160 (Del. 2006)).
10
Smith v. State, 2014 WL 5421251, at *2 (Del. Oct. 23, 2014) (citing Desmond v. State, 654
A.2d 821, 829 (Del. 1994)).
5