Wiggins v. State

• Court: Supreme Court of Delaware
• Decided: March 5, 2021
• Docket: 382, 2020
• Status: Published

Opinion

IN THE SUPREME COURT OF THE STATE OF DELAWARE

LIBERTY WIGGINS, § § No. 382, 2020 Defendant Below, § Appellant, § Court Below—Superior Court § of the State of Delaware v. § § Cr. ID No. N1807015953 STATE OF DELAWARE, § § Plaintiff Below, § Appellee. §

Submitted: February 8, 2021 Decided: March 5, 2021

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

ORDER

Upon consideration of the appellant’s opening brief, the appellee’s motion to affirm,

and the record below, it appears to the Court that:

(1) The appellant, Liberty Wiggins, filed this appeal from his sentencing for a

violation of probation (“VOP”). The State has moved to affirm the judgment below on the

ground that it is manifest on the face of Wiggins’s opening brief that his appeal is without

merit. We agree and affirm.

(2) On January 14, 2019, Wiggins pleaded guilty to fourth-degree rape involving

a victim who was less than sixteen years old. On May 10, 2019, following a presentence

investigation, the Superior Court sentenced Wiggins to ten years of imprisonment,

suspended after eighteen months for nine years of Level IV work release, suspended after

six months for one year of Level III probation. His sentence also prohibited Wiggins from having contact with any minor under eighteen years of age, other than his own children,

and required him to register as a Tier 3 sex offender. Wiggins filed a motion for

modification or reduction of sentence, and on June 4, 2020, the Superior Court modified

the Level IV work release portion of the sentence to Level IV DOC discretion.

(3) On July 14, 2020, a probation officer filed a VOP report. The report stated

that Wiggins was released from the Level IV Plummer Community Corrections Center to

begin Level III probation, which included GPS monitoring because of his status as a Tier

3 sex offender. The report alleged that on July 6, 2020, Wiggins allowed the battery of his

GPS monitor to fully deplete, in violation of the conditions of his probation. The report

also alleged that a member of the community reported observing Wiggins in the presence

of minor children on July 10, 11, and 12, 2020, and that GPS records confirmed that

Wiggins had been present at the reported location on those dates. The report further alleged

that on July 12, 2020, probation officers observed Wiggins at the reported location while

four children were also there.

(4) At a VOP hearing on October 19, 2019, the Superior Court found Wiggins

in violation of probation and imposed a VOP sentence of eight years of imprisonment,

suspended after successful completion of the Level V Transitions Sex Offender Program

for eighteen months of Level IV DOC discretion, suspended after six months for twelve

months of Level III probation with GPS monitoring. Wiggins has appealed from his VOP

sentence. On appeal, he argues that he believed that he was permitted to be in the location

where he was observed in the presence of the minor children; his probation supervision

should have been transferred to Kent County where he had more support; he was not aware

2 that the battery of GPS monitor had depleted; and the Transitions program is not currently

available because of the COVID-19 pandemic.

(5) After careful consideration, we find no merit to Wiggins’s appeal. As an

initial matter, we note that the rules of this Court direct the appellant to order a transcript

and to include in his appendix those portions of the record that are relevant to any claims

on appeal. Wiggins “had the burden to produce 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.”1 The

record in this case reflects that, despite a letter from this Court informing him of the

procedure for doing so, Wiggins made no effort to obtain a transcript or to apply for

preparation of a transcript at the State’s expense. The lack of a transcript precludes this

Court from determining whether Wiggins contested the violation at the VOP hearing or

only sought a lesser sentence than he received.2

(6) In any event, Wiggins does not assert that he did not have contact with

children, as prohibited by his sentence order and conditions of probation. Nor does he

claim that the battery of the GPS monitor was not depleted. Rather, he argues that he

should have received a lesser sentence. This Court’s appellate review of a sentence is

extremely limited and generally ends upon a determination that the sentence is within

1 Tricoche v. State, 525 A.2d 151, 154 (Del. 1987) (internal quotations omitted). 2 See Henderson v. State, 2020 WL 4668999 (Del. Aug. 7, 2020) (affirming the Superior Court’s judgment in an appeal from a violation of probation proceeding because appellant’s failure to provide transcript precluded review of whether he contested the VOP at the hearing or whether the evidence of the violation was sufficient). 3 statutory limits.3 Once Wiggins committed a VOP, the Superior Court was authorized to

impose any period of incarceration up to and including the balance of Level V time

remaining on his sentence.4 The record does not reflect, and Wiggins does not allege, that

the VOP sentence exceeded statutory limits or the Level V time that was previously

suspended. Moreover, the Department of Correction’s suspension of programs because of

the COVID-19 pandemic does not provide a basis for reversal of a VOP sentence.5

NOW, THEREFORE, IT IS ORDERED that the Motion to Affirm is GRANTED

and the judgment of the Superior Court is AFFIRMED.

BY THE COURT:

/s/ Karen L. Valihura Justice

3 Kurzmann v. State, 903 A.2d 702, 714 (Del. 2006). 4 11 Del. C. § 4334(c). 5 See Lewis v. State, 2020 WL 6037846 (Del. Oct. 12, 2020) (affirming VOP sentence despite suspension of programs in response to pandemic). 4