Submitted September 29, 2014.
Case Closed November 10, 2014.
This decision has been designated as "Table of Decisions Without Published Opinions." in the Atlantic Reporter.
Court Below--Superior Court of the State of Delaware, in and for New Castle County. Cr. ID No. 1206011052.
Before HOLLAND, RIDGELY, and VALIHURA, Justices.
Henry duPont Ridgely, Justice.
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. We agree and affirm.
(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 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. 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 ...