Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Averill v. State

Supreme Court of Delaware

March 26, 2019

WAYNE R. AVERILL, Defendant Below, Appellant,
v.
STATE OF DELAWARE, Plaintiff Below, Appellee.

          Submitted: January 25, 2019

          Court Below-Superior Court of the State of Delaware Cr. ID No. 9903002064 (N)

          Before STRINE, Chief Justice; VALIHURA and VAUGHN, Justices.

          ORDER

          LEO E. STRINE, JR. CHIEF JUSTICE.

         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 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 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 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 ...

Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.