IN THE SUPREME COURT OF THE STATE OF DELAWARE
WAYNE R. AVERILL, §
§
Defendant Below, § No. 243, 2018
Appellant, §
§ Court Below—Superior Court
v. § of the State of Delaware
§
STATE OF DELAWARE, § Cr. ID No. 9903002064 (N)
§
Plaintiff Below, §
Appellee. §
Submitted: January 25, 2019
Decided: March 26, 2019
Before STRINE, Chief Justice; VALIHURA and VAUGHN, Justices.
ORDER
Upon consideration of the parties’ briefs and the record on appeal, it appears
to the Court that:
(1) The defendant below-appellant, Wayne R. Averill, filed this appeal
from a Superior Court order sentencing him for a violation of probation (“VOP”).
After careful consideration of the parties’ arguments, we affirm the Superior Court’s
judgment.
(2) In 1999, Averill resolved two different criminal cases by entering guilty
pleas. In Criminal ID No. 9809008668, Averill pled guilty to three counts of
Indecent Exposure in the First Degree. In Criminal ID No. 9903002064, Averill
pled guilty to three counts of Unlawful Intercourse in the Third Degree. Effective
June 21, 1999, the Superior Court sentenced Averill as follows: (i) one year of Level
V incarceration for each of the indecent exposure counts; (ii) for the first count of
unlawful sexual intercourse, ten years of Level V incarceration suspended after
seven years for three years of Level III supervision; and (iii) for the other two counts
of unlawful sexual intercourse, ten years of Level V incarceration, suspended for ten
years of Level III supervision.
(3) On October 23, 2007, the Superior Court modified these sentences to
place Averill, effective immediately, on Level IV work release for six months,
followed by two years of Level III probation. On January 16, 2008, the Superior
Court entered a modified sentencing order providing that: (i) the one-year sentences
for indecent exposure were suspended after time served with no probation to follow;
(ii) the ten-year sentence for the first count of unlawful sexual intercourse was
suspended after time served for six months of Level IV work release followed by
two years of Level III probation; and (iii) the ten-year sentences for the other two
counts of unlawful sexual intercourse were suspended for two years of Level III
probation.
(4) In the summer and fall of 2008, Averill was arrested on new charges.
On February 10, 2009, he pled guilty to Sex Offender Loitering and Unlawful Sexual
Conduct in Criminal ID No. 081009749. On September 9, 2009, the Superior Court
sentenced Averill, effective October 6, 2008, to three years of Level V incarceration
2
for Sex Offender Loitering and two years of Level V incarceration suspended, after
one year for one year of Level IV Home Confinement or Work Release for Unlawful
Sexual Conduct. That same day, the Superior Court found Averill had violated his
probation in Criminal ID No. 9903002064 and sentenced him as follows: (i) for the
first count of unlawful sexual intercourse, ten years of Level V incarceration, with
credit for 85 days previously served, suspended after two years for three years of
Level III probation; and (ii) for each of the other two counts of unlawful sexual
intercourse, ten years of Level V incarceration, suspended after two years for three
years of Level III probation. The Superior Court discharged Averill as unimproved
on his other convictions.
(5) On January 7, 2014, Averill filed a motion for time previously served.
He sought Level V credit for time previously served on his first unlawful sexual
intercourse sentence. According to the State’s response, Averill was entitled to six
years and twenty-eight days of credit toward that sentence for time he served, leaving
three years, six months and twenty-eight days left on his sentence. The State noted
that the two years of non-suspended Level V time imposed for his VOP on that
conviction in September 2009 did not exceed the remaining time.
(6) On April 3, 2014, the Superior Court informed Averill that the Level V
time he served had already been credited to Criminal ID No. 081009749 and vacated
a March 31, 2014 order that does not appear on the docket or in the record. Averill
3
did not appeal this decision, but did file a motion for reconsideration in October
2015. On November 10, 2015, the Superior Court referred to the April 3, 2014 letter
and denied the motion.
(7) It appears that Averill was released to Level IV Home Confinement in
February 2017. At that time, he signed special sex offender conditions, which
included not possessing sexually explicit material or having any contact with minors.
On February 28, 2018, an administrative warrant was returned for Averill’s VOP.
The warrant alleged that Averill had violated his probation by having contact with a
child.
(8) At the first VOP hearing on March 23, 2018, a probation officer
testified that he went to Averill’s residence for a home visit on February 26, 2018.
After fifteen minutes or so, Averill answered the door in a highly intoxicated state.
The probation officer said this had happened before while Averill was on Level IV
Home Confinement, which is zero tolerance for alcohol. Because he was
intoxicated, acted nervous, and could not explain why he took so long to answer the
door, the probation officer obtained his supervisor’s permission to conduct a search.
In looking at Averill’s phone, the probation officer saw a video, time-stamped
February 25, 2018, that showed Averill sitting next to a shirtless child. There was
also a photograph of Averill smoking marijuana and some photographs of synthetic
4
marijuana cigarettes. Averill claimed the child’s parent was a friend and the child
was only with Averill briefly.
(9) Through his counsel, Averill admitted that he had violated his probation
by drinking alcohol and having contact with a child. Averill claimed for the first
time that the child was his son, who he learned about for the first time in December
2017. Based on the sex offender treatment that he had already completed and
continued to do, his completion of a year of Level IV Home Confinement, his
medical record, and his mental health history, Averill argued that he should not be
incarcerated for the VOPs. The Superior Court accepted that Averill had admitted
to violating his probation, but asked the probation officer to investigate the identity
of the child further and the circumstances of his presence in Averill’s residence
before Averill was sentenced. The Superior Court judge also stated that, because
she was presiding over Averill’s civil case against former Judge William Bradley,
she was going to reassign the VOP to another Superior Court judge. The judge
emphasized that she did not believe there was an “out-and-out conflict” requiring
her recusal, but that it would be cleaner to separate the civil case and the VOP case.1
(10) At the next VOP hearing on April 11, 2018, the probation officer
reported that he had spoken to both Averill and the child’s mother regarding the
child. Based on their conflicting accounts of how long they had dated and Averill’s
1
Answering Brief Appendix at B22.
5
confinement history in 2008, the probation officer stated that he did not believe
Averill was the child’s father and even if he was, he was subject to a no-contact-
with-minors condition as part of his probation. The probation officer also stated that
during a home visit three days after the last VOP hearing, he found a camcorder with
footage of Averill and the child time-stamped March 25th as well as a computer with
emails, with sexually explicit attachments, from the child’s mother. The probation
officer recommended that Averill complete the Level V Transitions program.
(11) Averill admitted that he had violated the court order by having
additional contact with the child, but he was excited to be a father, he was preparing
the child for his possible incarceration, and if the State really believed that he had
abused the child, the State would have had its investigators speak to the child to
determine if the child had been abused (the probation officer stated that he had
reported the issue to the Child Protective Services). Averill also argued that he could
not control what people emailed him and there was no evidence he had opened the
sexually explicit emails. Averill personally spoke about his health problems, the
fact that his previous victims were female, not male, his treatment efforts, and the
sexual abuse he suffered as a child.
(12) The Superior Court found that Averill had violated his probation. For
the VOP, Averill was sentenced as follows: (i) for the first count of unlawful sexual
intercourse, three years of Level V incarceration, suspended upon successful
6
completion of the Transitions program, and followed by two years of Level III
probation with GPS monitoring; and (ii) for the other two counts of unlawful sexual
intercourse, eight years of Level V incarceration suspended for two years of Level
III probation. After filing this appeal, Averill filed a motion for modification of
sentence and motion for correction of illegal sentence, arguing that he had already
completed his ten-year sentence for the first count of unlawful sexual intercourse.
The Superior Court deferred ruling on the motions until this appeal is resolved.
(13) On appeal, Averill argues that: (i) the probation officer was not
permitted to search his fiancé’s camcorder; (ii) the VOP sentence was based on the
recommendation of the Superior Court judge who recused herself and should have
recused herself earlier in the case; (iii) his VOP hearing should have been held in
Mental Health Court and he should have received a lesser sentence based on his
history of mental health problems; (iv) after he completes his Level V sentence, he
should not be held at Level V until a GPS unit is available; and (v) he has already
served all of the Level V time on his first unlawful sexual intercourse sentence.
Claims that Averill did not raise in the proceedings below are subject to plain error
review.2 “[T]he doctrine of plain error is limited to material defects which are
apparent on the face of the record; which are basic, serious and fundamental in their
2
Supr. Ct. R. 8.
7
character, and which clearly deprive an accused of a substantial right, or which
clearly shows manifest justice.”3
(14) After careful consideration, we find no merit to Averill’s appeal.
Probation is an “act of grace,” and the Superior Court has broad discretion in
deciding whether to revoke a defendant’s probation.4 Averill admitted that he
violated his probation by drinking and having contact with a child, even after the
Superior Court expressed grave concern with this contact at the first VOP hearing.
Averill’s counseled admission to his VOP constitutes a waiver of his claim that the
probation officer illegally searched the camcorder.5
(15) The record does not support Averill’s claim that the Superior Court
sentenced him based on the recommendation of the previous Superior Court judge
who reassigned the VOP. According to the transcript of the April 11, 2018 hearing,
the Superior Court judge simply relied on the previous judge’s calculation of the
time Averill had already served to craft Averill’s VOP sentence. The Superior Court
judge’s comments make it clear that she sentenced Averill based on her own personal
views of Averill’s history and conduct, not the views of the previous judge.6
3
Wainwright v. State, 504 A.2d 1096, 1100 (Del. Mar. 11, 2019).
4
Kurzmann v. State, 903 A.2d 702, 716 (Del. 2006).
5
Thompson v. State, 2016 WL 4427177, at *2 (Del. Aug. 19, 2016).
6
See, e.g., Answering Brief Appendix at B33 (“My read on you is that you will say whatever you
want to say when you want to say it to try to minimize your own behavior….And so although you
are engaged in community treatment and college, all of which I think is applaudable and good, it
doesn’t really address what is concerning to the Court, which is the fact that despite treatment you
are having contact with minors and ignoring court orders…I don’t think putting you at—giving
8
(16) As to his claim that his VOP should have been transferred to the Mental
Health Court, Averill did not request this below and has not shown that such a
transfer was even possible.7 Averill also claims that the Superior Court ignored his
mental health history and treatment in imposing an excessive sentence, but the
Superior Court acknowledged his treatment efforts. Averill ignores the Superior
Court’s understandable concern with his repeated violation of a no-contact-with-
minors condition in light of his criminal history. There is no indication in the record
that the Superior Court sentenced Averill with a closed mind or considered
impermissible factors in imposing his sentence.
(17) Averill next claims that after he completes his Level V sentence, he
cannot not be held at Level V until a GPS unit is available. Averill did not raise this
claim below so we review for plain error.8 Given the nature of Averill’s crimes and
his VOPs, there was no plain error in the imposition of a sentence holding Averill at
Level V until a GPS unit was available.
(18) Finally, Averill argues that he has completed the sentence on the first
count of unlawful sexual intercourse. He did not raise this claim below so we review
you a short period at Level V is going to be helpful and I don’t think that putting you in the
community is going to be helpful.”).
7
See Mental Health Court, http://courts.delaware.gov/superior/mentalhealth/ (providing “[n]ot
eligible for the program are defendants charged with sex offenses, homicide, domestic violence,
weapons offenses, or offenses involving serious bodily injury” and referring to program
“collaborative partnership” of, among others, the Superior Court, Department of Justice, and
Office of the Public Defender).
8
See supra n.2.
9
for plain error.9 Once Averill committed a VOP, the Superior Court was authorized
to impose any period of incarceration up to and including the balance of Level V
time remaining on his sentence.10 As in many cases, the complicated nature of the
sentences imposed on Averill makes it difficult for us to determine exactly how
much Level V time remains for him on his first sentence for unlawful sexual
intercourse. But, the reality is that, in 1999, Averill was sentenced to a total of thirty-
three years of Level V time consecutively, has committed several new crimes and
VOP violations, and thus we perceive no rational scenario in which Averill is serving
Level V time he is not eligible to serve. On his pending motions for modification
and correction of sentence, it would be useful if the parties, with the involvement of
the Superior Court and Department of Correction, determined with precision exactly
what Level V or other time Averill still has to serve on his first sentence for unlawful
sexual intercourse, and the balance left on his other convictions.
NOW, THEREFORE, IT IS ORDERED that the judgment of the Superior
Court is AFFIRMED.
BY THE COURT:
/s/ Leo E. Strine, Jr.
Chief Justice
9
See id.
10
11 Del. C. § 4334(c); Pavulak v. State, 880 A.2d 1044, 2016 (Del. 2005).
10