MARK L. SEWELL, Defendant Below, Appellant,
STATE OF DELAWARE, Plaintiff Below, Appellee.
Submitted: July 28, 2017
Below-Superior Court of the State of Delaware Cr. ID No.
VAUGHN, SEITZ, and TRAYNOR, Justices.
Collins J. Seitz, Jr. Justice
17th day of October 2017, after careful
consideration of the appellant's opening brief, the
State's motion to affirm, and the Superior Court record,
it appears to the Court that:
a Superior Court criminal case in 2010, the appellant, Mark
L. Sewell, pled guilty to charges of burglary and conspiracy
and was sentenced to ten years of Level V incarceration,
suspended after three years, followed by Level IV home
confinement or halfway house and Level III probation. This
appeal is from the Superior Court's May 8, 2017 judgment
finding Sewell guilty of, and sentencing him for, his sixth
violation of probation ("VOP") in the 2010 case.
The State has filed a motion to affirm the Superior
Court's judgment on the ground that it is manifest on the
face of Sewell's opening brief that the appeal is without
merit. We agree and affirm.
Sewell's arrest on new charges, missed probation
appointments in November and December of 2016, failure to
report a change in his address to his probation officer, and
termination from a court-ordered alcohol and substance abuse
treatment program (hereinafter "the Program"),
led to his sixth charge of VOP on December 30,
2016. At the VOP hearing held on May 8, 2017,
the Superior Court found Sewell guilty of VOP and sentenced
him to three years and four months of Level V incarceration,
suspended after successful completion of the Level V Key and
Level IV Crest substance abuse programs, followed by one year
of Level III Crest Aftercare. This appeal followed.
his opening brief on appeal, Sewell submits a copy of a
certificate indicating that he completed the Program. Sewell
explains that he is submitting the certificate to disprove
statements made in the VOP report and by his probation
officer at the May 8, 2017 hearing, that he was terminated
from the Program for violating a program rule.
the appealing party, Sewell was required to-but did
not-provide a transcript of the May 8, 2017 VOP
hearing. The Court needs that transcript to
evaluate Sewell's claim on appeal. Without the
transcript, the Court is unable to review whether the State
presented sufficient evidence in support of Sewell's
alleged termination from the Program, whether Sewell raised
the claim he now raises on appeal at the hearing, and what
the Superior Court's response may have been.
Assuming, anyway, that the VOP report and Sewell's
probation officer stated, in error, that Sewell was
terminated from the Program, those alleged misstatements do
not suggest that the Superior Court abused its discretion or
erred when finding Sewell guilty of and sentencing him for
the VOP. In addition to the allegation that he was terminated
from the Program, Sewell was charged with VOP based on his
arrest on new charges, missed probation appointments, and
failure to report a change of address to his probation
prove a violation of probation, the State must present some
competent evidence to reasonably satisfy the judge that the
defendant's conduct has not been as good as required by
the conditions of the defendant's
probation. In this case, Sewell does not claim that
there was insufficient evidence presented at the VOP hearing
to prove that he was arrested, missed probation appointments,
and failed to report a change of address to his probation
officer. Thus, the Superior Court properly found Sewell in
violation of the conditions of his probation.
THEREFORE, IT IS HEREBY ORDERED that the State's motion
to affirm is GRANTED. The judgment of the Superior Court is