Whaley v. State ( 2017 )


Menu:
  • IN TI-IE SUPREME COURT OF THE STATE OF DELAWARE
    RAYFUS R. WI-IALEY, §
    §
    Defendant Below- § No. 36, 2017
    Appellant, §
    §
    v. § Court Below--Superior Court
    § of the State of Delaware
    STATE OF DELAWARE, §
    § Cr. ID 1205025447
    Plaintiff Below- §
    Appellee. §
    Submitted: February 8, 2017
    Decidecl: March 30, 2017
    Before VALIHURA, VAUGHN, and SEITZ, Justices.
    MR
    This 30“‘ clay of March 2017, upon consideration of the appellant’s opening
    brief, the State’s motion to aftirm, and the record on appeal, it appears to the Court
    that:
    (l) The defendant-appellant, Rayfus Whaley, filed this appeal from the
    Superior Court’s order dated December 22, 2016, sentencing him for a violation of
    probation (VOP). The State has filed a motion to affirm the judgment below on
    the ground that it is manifest on the face of Whaley’s opening brief that his appeal
    is without merit. We agree and aftirm.
    (2) In December 2012, Whaley pled guilty to one count each of
    Possession of a Fireann during the Commission of a Felony (“PFDCF”),
    Possession of a Firearm by a Person Prohibited (“PFPP”), and Assault in the
    Second Degree. The Superior Court him as follows: (i) for PFDCF, to three years
    at Level V incarceration; (ii) for PFPP, to eight years at Level V incarceration, to
    be suspended after serving two years in prison and upon the successful completion
    of the Key Program for Level IV residential drug treatment, to suspended upon the
    successful completion of treatment for eighteen months at Level III probation; and
    (iii) for assault, eight years at Level V incarceration, to be suspended entirely for
    eighteen months at Level III probation.
    (3) In September 2016, while participating in the Crest Program at the
    Morris Correctional Institute, Whaley assaulted his roommate and bit off a portion
    of the other man’s earlobe. As a result, Whaley was arrested and charged with
    Assault in the Second Degree and with violating his probation. On December 22,
    2016, the Superior Court found that Whaley had committed a VOP and sentenced
    him as follows: (i) for PFPP, to five years at Level V incarceration, to be
    suspended after serving six months in prison for one year at Level IV residential
    drug treatment, to be suspended upon successful completion of drug treatment for
    eighteen months at Level III probation; and (ii) for assault, to eight years at Level
    V incarceration, to be suspended entirely for eighteen months at Level III
    probation. Whaley now appeals his VOP adjudication and sentence.
    (4) In his opening brief on appeal, Whaley contends that: (i) he was
    denied his due process rights at the VOP hearing; (ii) it was unfair for his probation
    to be violated while his roommate, whom Whaley contends was equally culpable,
    was released from DOC custody; and (iii) his counsel was ineffective for failing to
    present exculpatory evidence and witnesses in his favor. The State has moved to
    affirm the Superior Court’s judgment.
    (5) To the extent that Whaley raises a claim of ineffective assistance of
    counsel, this Court will not consider such a claim in an appeal from a VOP when
    the issue was not raised to the trial court in the first instance.l Moreover, the Court
    is unable to review Whaley’s other claims because Whaley failed to order and
    provide the Court with a copy of the transcript of the VOP hearing and sentencing.
    (6) As the Court has held many times, it is the appellant’s obligation to
    supply those portions of the transcript that are necessary to give the Court a fair
    and accurate account of the context in which the alleged errors arose.2 Without a
    copy of the transcript of the VOP hearing and sentencing, the Court is unable to
    review Whaley’s contentions that the Superior Court denied him the right to call
    witnesses and present evidence and imposed an inappropriate sentence. Thus, the
    Court concludes that Whaley’s failure to request and include adequate transcripts
    l S!?Iilh v. S!a!€, 
    2014 WL 5421251
    , *2 (DCl. OCt. 23, 2014).
    2 Tricoche v. Slale, 525 A.2d lSl, 154 (Del. 1987).
    of the proceedings, as required by the rules of the Court, precludes appellate
    review of his claims of error on appeal.3
    NOW, THEREFORE, IT IS ORDERED that the judgment of the Superior
    Court is AFFIRMED.
    BY THE COURT:
    3 See Hawkins v. Srate, 
    2010 WL 3341578
    (Del. Aug. 25, 2010) (holding that failure to provide
    transcript of VOP hearing precludes review of argument on appeal).
    

Document Info

Docket Number: 36, 2017

Judges: Vaughn, J.

Filed Date: 3/30/2017

Precedential Status: Precedential

Modified Date: 3/31/2017