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Houchens v. State

Supreme Court of Delaware
Aug 28, 2002
804 A.2d 1066 (Del. 2002)

Opinion

No. 289, 2002

Submitted: August 9, 2002

Decided: August 28, 2002

Court Below — Superior Court of the State of Delaware, in and for Sussex County Cr.A. No. VS96-05-0171-06.


Affirmed.

Unpublished opinion is below.

GLENN R. HOUCHENS, Defendant Below-Appellant, v. STATE OF DELAWARE, Plaintiff Below-Appellee. No. 289, 2002 In the Supreme Court of the State of Delaware. Submitted: August 9, 2002 Decided: August 28, 2002

Before VEASEY, Chief Justice, WALSH and HOLLAND, Justices.

ORDER

JOSEPH T. WALSH, Justice.

This 28TH day of August 2002, upon consideration of the briefs on appeal and the record below, it appears to the Court that:

(1) The defendant-appellant, Glenn R. Houchens, filed an appeal from the Superior Court's May 10, 2002 finding of a violation of probation ("VOP"), for which he received a 1-year Level V sentence. We find no merit to the appeal. Accordingly, we AFFIRM.

Houchen's 1996 sentence of 3 years at Level V was to be suspended after 1 year, with Houchens to be discharged immediately from probation as unimproved.

(2) In this appeal, Houchens claims that: a) he was improperly denied counsel at the VOP hearing; and b) his VOP sentence was excessive and should have taken into account the time he spent at Level IV Home Confinement.

(3) In September 1996, Houchens pleaded guilty to Possession with Intent to Deliver Marijuana, Criminal Trespass in the Second Degree and Criminal Mischief. He was sentenced on the possession conviction to 3 years incarceration at Level V, to be suspended for 6 months at Level IV Home Confinement, followed by 18 months at Level III. Houchens committed five VOP's in connection with his possession conviction between 1997 and 2002 prior to committing the VOP that is the subject of the instant appeal.

Pursuant to SUPER. CT. CRIM. R. 11(e)(1) (C).

On the other convictions, Houchens was sentenced to a total of 90 days at Level V incarceration, to be suspended for 6 months at Level II.

(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, Houchens 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 in this case reflects that Houchens neither designated in his notice of appeal nor made any arrangements to obtain the transcript of his May 10, 2002 VOP hearing. The lack of a transcript precludes this Court from determining whether Houchens informed the Superior Court of his desire for counsel, whether he objected to proceeding with the VOP hearing without counsel, whether he contested the violation, and whether the circumstances of the violation were so complex as to require legal representation. Houchen's failure to provide a transcript of the VOP hearing, as required by the rules of this Court, precludes appellate review of his claim that he was improperly denied counsel at the hearing.

Jones v. State, 560 A.2d 1056, 1057 (Del. 1989) (citing Gagnon v. Scarpelli, 411 U.S. 778, 783, 790 (1973)).

Also, while Houchens contends he contacted the Public Defender's Office regarding representation at the VOP hearing, he has provided no supporting documentation for that contention.

(6) The lack of a transcript also precludes appellate review of Houchens' claim that he was sentenced to an excessive term of incarceration, since the record does not reflect whether this claim was presented to the Superior Court in the first instance and, if so, what factual allegations were made. The claim is facially without merit in any case, since the Superior Court was required to credit Houchens only with "any period of actual incarceration."

DEL. CODE ANN. tit. 11 Del. C. § 3901(c); Walt v. State, 727 A.2d 836, 839-40 (Del. 1999).

NOW, THEREFORE, IT IS ORDERED that the judgment of the Superior Court is AFFIRMED.


Summaries of

Houchens v. State

Supreme Court of Delaware
Aug 28, 2002
804 A.2d 1066 (Del. 2002)
Case details for

Houchens v. State

Case Details

Full title:GLENN R. HOUCHENS, Defendant Below-Appellant, v. STATE OF DELAWARE…

Court:Supreme Court of Delaware

Date published: Aug 28, 2002

Citations

804 A.2d 1066 (Del. 2002)