Opinion
No. 231, 2002
Submitted: July 22, 2002
Decided: September 24, 2002
Court Below-Superior Court of the State of Delaware, in and for Sussex County Cr.A. Nos. 00-08-0209-04 00-08-0211-04
Affirmed.
Unpublished opinion is below.
GEORGE H. EDWARDS, JR., Defendant Below-Appellant, v. STATE OF DELAWARE, Plaintiff Below-Appellee. No. 231, 2002 In the Supreme Court of the State of Delaware. Submitted: July 22, 2002 Decided: September 24, 2002
Before VEASEY, Chief Justice, WALSH and STEELE, Justices
E. Norman Veasey, Chief Justice
ORDER
This 24th day of September 2002, upon consideration of the appellant's opening brief and the appellee's motion to affirm pursuant to Supreme Court Rule 25(a), it appears to the Court that:
(1) The defendant-appellant, George H. Edwards, claims error in the Superior Court's finding of a violation of probation ("VOP"). The plaintiff-appellee, the State of Delaware, has moved to affirm the judgment of the Superior Court on the ground that it is manifest on the face of Edwards' opening brief that the appeal is without merit. We agree and AFFIRM.
SUPR. CT. R. 25(a).
(2) In this appeal, Edwards claims that there was no basis for the Superior Court's finding of a VOP. He contends that his probation officer was "out to get him" and lied to the Superior Court about his testing positive for cocaine. He also contends that there was a valid reason why he missed a curfew check, as his attorney explained at the VOP hearing.
(3) The record reflects that, on March 5, 2002, the Superior Court found Edwards in violation of his probation but deferred sentencing on the violations. While Edwards has not provided this Court with a transcript of the March 5, 2002 hearing, a February 13, 2002 VOP report, which appears to have provided the basis for the finding of a VOP, reflects that Edwards twice failed to report to his Halfway House, failed to report to a Crest Aftercare meeting and tested positive for alcohol. On April 16, 2002, the Superior Court sentenced Edwards to 4 years and 9 months incarceration at Level V, to be suspended upon successful completion of the Key Program for the balance of the Level V time at Residential Substance Abuse Treatment Program and Level III Aftercare.
These were Edwards' fourth VOP's in connection with his October 2000 convictions for Possession with Intent to Deliver Cocaine and Resisting Arrest.
On April 12, 2002, a VOP report was filed in the Superior Court reflecting that Edwards had tested positive for cocaine. The record reflects that this incident did not form the basis for the Superior Court's sentence on April 16, 2002 and that the report was later withdrawn.
(4) The rules of this Court direct all parties to order a transcript and to include in their appendix those portions of the record relevant to any claims on appeal. As the appellant, Edwards has the burden of producing "such portions of the . . . transcript as are necessary to give this Court a fair and accurate account of the context in which the claim of error occurred" and "all evidence relevant to the challenged finding or conclusion."
Tricoche v. State, 525 A.2d 151, 154 (Del. 1987); SUPR. CT. R. 9(e) (ii) and 14(e).
(5) The record reflects that Edwards designated and ordered only the transcript from the April 16, 2002 hearing. For that reason, only that transcript appears in the record. To the extent that Edwards challenges the basis for the Superior Court's finding of a VOP at the hearing on March 5, 2002, the lack of a transcript precludes us from reviewing that claim. The record that has been provided to this Court, including the transcript of the April 16, 2002 sentencing hearing, reflects no abuse of discretion on the part of the Superior Court in sentencing Edwards for the VOP that it had found on March 5, 2002.
(5) It is manifest on the face of Edwards' opening brief that this appeal is without merit because the issues presented on appeal are controlled by settled Delaware law and, to the extent that judicial discretion is implicated, clearly there was no abuse of discretion.
NOW, THEREFORE, IT IS ORDERED that, pursuant to Supreme Court Rule 25(a), the State of Delaware's motion to affirm is GRANTED. The judgment of the Superior Court is AFFIRMED.
On July 12, 2002, Edwards filed a motion for bail in this Court. The motion, which we deem to be an application for a certificate of reasonable doubt, is untimely because it was not filed within 30 days of the Superior Court judgment, is procedurally improper because it was not presented to the Superior Court in the first instance and is without merit because there is no reasonable ground to believe that there is error in the record. DEL. CODE ANN. tit. 11 Del. C. § 4502. Therefore, the motion is denied.