Opinion
No. 23, 2002.
Submitted: March 28, 2002.
Decided: April 30, 2002.
Court Below — Superior Court of the State of Delaware, in and for Sussex County, Cr. ID No. 0107009948.
Affirmed.
Unpublished Opinion is below.
JODY P. BAGWELL, Defendant Below-Appellant, v. STATE OF DELAWARE, Plaintiff Below-Appellee. No. 23, 2002. Supreme Court of the State of Delaware. Submitted: March 28, 2002. Decided: April 30, 2002.
Before VEASEY, Chief Justice, WALSH, and HOLLAND, Justices.
JOSEPH T. WALSH, Justice.
ORDER
This 30th day of April 2002, upon consideration of the appellant's opening brief and the State's motion to affirm, it appears to the Court that:
(1) The defendant-appellant, Jody Bagwell, filed this appeal from the Superior Court's adjudication and sentence for Bagwell's violation of probation (VOP). The State has moved to affirm on the ground that it is manifest on the face of Bagwell's opening brief that his appeal is without merit. We agree and affirm.
(2) The record reflects that Bagwell pled guilty on October 15, 2001 to two counts of third degree assault and three counts of endangering the welfare of a child. The Superior Court sentenced Bagwell on each count to one year at Level V incarceration. Each sentence was suspended entirely for one year of Level III probation. The first two sentences of probation were to run consecutively, and the last three sentences of probation were to run concurrently with the first sentence of probation. In November 2001,
Bagwell was charged with violating a condition of his probation by testing positive for marijuana use. On December 13, 2001, the Superior Court, following a hearing, concluded that Bagwell had violated probation. The Superior Court sentenced Bagwell to total period of five years at Level V incarceration suspended entirely for five consecutive years of Level III probation.
(3) On appeal, Bagwell does not contest the Superior Court's VOP adjudication. Bagwell nonetheless contends that the Superior Court's written sentencing order is inconsistent with the sentence pronounced by the Superior Court following the December 2001 VOP hearing. Bagwell asserts that the Superior Court sentenced him to only one year at Level III probation.
(4) Bagwell's contention is unsupported by the record. Both the written sentencing order and the Superior Court's Judicial Action Form reflect that Bagwell was found in violation of probation on each of his five underlying sentences and was sentenced to one year at Level V suspended for one year at Level III for each charge. Despite being informed by the Clerk of this Court that he either must make arrangements to pay for the transcript of the VOP hearing or else request the Superior Court to prepare the transcript at State expense, Bagwell made no attempt to arrange for preparation of the VOP hearing transcript. As the appellant, Bagwell has the responsibility to provide the Court with such portions of the transcript to support his claims of error. In the absence of any record evidence to support his claim that the VOP sentencing order is inconsistent with the sentence orally pronounced by the Superior Court, we find Bagwell's appeal to be without merit.
Tricoche v. State, 525 A.2d 151, 154 (Del. 1987).
NOW, THEREFORE, IT IS ORDERED that the State's motion to affirm is GRANTED. The judgment of the Superior Court is AFFIRMED.