IN THE SUPREME COURT OF THE STATE OF DELAWARE
JAMAL H. ROBERTS,
STATE OF DELAWARE,
No. 113, 2012
Court Below─Superior Court
of the State of Delaware, in and
for New Castle County
Cr. ID No. 1103003228
Submitted: April 16, 2012
April 25, 2012
Before BERGER, JACOBS and RIDGELY, Justices.
This 25th day of April 2012, 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, Jamal H. Roberts, filed an appeal from
the Superior Court’s January 16, 2012 violation of probation (“VOP”)
sentencing order. The plaintiff-appellee, the State of Delaware, has moved
to affirm the Superior Court’s judgment on the ground that it is manifest on
the face of the opening brief that the appeal is without merit.1 We agree and
(2) The record before us reflects that, in June 2011, Roberts entered a
plea of guilty to one count of Non-Compliance With Bond Conditions. He
was sentenced to 2 years of Level V incarceration, to be suspended for 1
year of Level III probation. In September 2011, Roberts was arrested and
charged in connection with an automobile chase with police officers. In
November 2011, Roberts was charged with a VOP.
After a contested
hearing in December 2011, Roberts was found to have committed a VOP.
(3) In January 2012, Roberts again was charged with violating his
probation. The matter was set for a contested hearing on February 16, 2012.
Prior to the hearing, on February 14, 2012, Roberts entered a plea of guilty
to Disregarding a Police Officer’s Signal and Reckless Driving. Because of
Roberts’ new charges, the Superior Court found that Roberts had committed
a VOP without taking any testimony on his alleged technical violations. He
was re-sentenced to 1 year, 9 months and 26 days at Level V, to be
suspended after 1 year and 6 months for probation. Roberts then filed the
Supr. Ct. R. 25(a).
(4) In his appeal, Roberts claims that a) the Superior Court
improperly relied on the statements of his probation officers at the hearing;
b) the State committed a discovery violation; c) the Superior Court erred by
not permitting him to cross-examine witnesses; d) his attorney provided
ineffective assistance; e) the Superior Court failed to impose a 6-month
period of probation in violation of Del. Code Ann. tit. 11, § 4204(l); and f)
the Superior Court provided an erroneous interpretation of Department of
Correction (“DOC”) policy in connection with his November 2011 VOP.
(5) Neither the Superior Court docket nor the Supreme Court docket
reflects that Roberts ever requested a transcript of the VOP hearing in which
his claimed errors allegedly occurred. The failure to include a transcript of
trial court proceedings precludes appellate review of a claim of error with
respect to those proceedings.2 Roberts’ first, second, third and sixth claims
involve alleged errors occurring during the February 16, 2012 VOP hearing.
In the absence of a transcript, this Court is unable to review any claims
relating to that hearing.
(6) Roberts’ remaining two claims are equally unavailing. His claim
of ineffective assistance of counsel will not be reviewed by this Court in the
Tricoche v. State, 525 A.2d 151, 154 (Del. 1987).
absence of a full adjudication of the issue by the Superior Court.3 Because
there is no evidence that the Superior Court previously ruled on that claim,
we decline to address it for the first time in these proceedings. Roberts’
claim that the Superior Court failed to sentence him to a 6-month period of
probation as required by statute should be addressed to the Superior Court in
the first instance in a motion for sentence modification.4
(7) It is manifest on the face of the opening brief that this appeal is
without merit because the issues presented are controlled by settled
Delaware law and, to the extent that judicial discretion is implicated, there
was no abuse of discretion.
NOW, THEREFORE, IT IS ORDERED that the State’s motion to
affirm is GRANTED. The judgment of the Superior Court is AFFIRMED.
BY THE COURT:
/s/ Jack B. Jacobs
Desmond v. State, 654 A.2d 821, 829 (Del. 1994).
Super. Ct. Crim. R. 35.