IN THE SUPREME COURT OF THE STATE OF DELAWARE

JOSEPH L. MITCHELL, §

§ No. 18, 2015

Defendant Below, §

Appellant, § Court Below—Superior Court

§ of the State of Delaware in and

v. § for Kent County

§

STATE OF DELAWARE, § Cr. ID No. 0404002077

§

Plaintiff Below, §

Appellee. §

Submitted: February 6, 2015

Decided: March 23, 2015

Before HOLLAND, VALIHURA and VAUGHN, Justices.

O R D E R

This 23rd day of March 2015, upon consideration of the appellant’s opening 

brief, the appellee’s motion to affirm, and the Superior Court record, it appears it 

appears to the Court that:

(1) The appellant, Joseph L. Mitchell, filed this appeal from his 

conviction and sentence in the Superior Court for having violating the conditions 

of Level IV Home Confinement. On appeal, the appellee, State of Delaware, has 

filed a motion to affirm the Superior Court’s judgment on the ground that it is 
2

manifest on the face of Mitchell’s opening brief that the appeal is without merit.1 

We agree and affirm.

(2) The record reflects that Mitchell pled guilty in 2004 to Trafficking in 

Cocaine and was sentenced to twenty years of Level V incarceration suspended 

after nine years for eighteen months of Level III probation. In 2011, the Superior 

Court modified the sentence to require that Mitchell complete the Key Program at 

Level V and the Crest Program at Level IV before serving twelve months of Level 

III probation.

(3) On October 3, 2014, Mitchell was found guilty, for the second time,

of violating the conditions of Level III probation and was resentenced to fourteen 

years at Level V incarceration suspended for six months at Level IV Home 

Confinement followed by one year at Level III probation. One month later, on 

November 3, 2014, Mitchell’s probation officer issued an administrative warrant 

alleging that Mitchell had violated the conditions of Level IV Home Confinement.

In the violation report that followed, Mitchell’s probation officer alleged that 

Mitchell “was not at home . . . when home visits were conducted” on October 29, 

30 and 31, 2014, including when the probation officer “attempted to install the 

Home Confinement equipment” at Mitchell’s residence on October 29, 2014,” and 

that Mitchell “did not have permission to be out during [those] hours.”

 

1 Del. Supr. Ct. R. 25(a).
3

(4) At a contested violation hearing on December 19, 2014, Mitchell was 

found guilty of violating the conditions of Level IV Home Confinement and was 

resentenced to fourteen years at Level V suspended after six months for one year at 

Level III followed by one year at Level II. This appeal followed.

(5) The Court notes that Mitchell did not request the preparation of the 

hearing transcript, which he was required to do as the appealing party.2 Generally, 

the failure to include adequate transcripts of the trial court proceedings precludes 

appellate review of claims of error occurring in those proceedings.3

(6) Mitchell devotes most of his opening brief to a claim that his due 

process rights were violated when he was not brought before a magistrate to 

determine bail. Mitchell’s claim is without merit. The record reflects that the 

Superior Court ordered that Mitchell should be held without bail until the violation 

hearing. Under 11 Del. C. 4334(b), the court has discretion to set bail for a 

defendant arrested for having violated conditions of supervision.4 

(7) Mitchell also claims that his due process rights were violated when he 

did not receive written notice of the alleged violation and was not advised that he 

had the right to retain counsel for the violation hearing, as required by Superior 

 

2

Tricoche v. State, 525 A.2d 151, 154 (Del. 1987).

3

Id.

4

11 Del. C. § 4334(b). 
4

Court Criminal Rule 32.1.

5

 Without a transcript of the December 19, 2014 

hearing, this Court cannot discern whether Mitchell raised his claims in the 

Superior Court. In any event, Mitchell does not contend that he did not have actual 

notice of the alleged violation or that he was unprepared to address the violation at 

the hearing on December 19, 2014. Under these circumstances, the Court 

concludes that Mitchell’s due process claims are without merit.6

(8) Mitchell next alleges that his probation officer was biased against

him, and that a “curfew violation” should not have led to a revocation of Level IV 

Home Confinement. Mitchell’s claims are without merit. There is no support in 

the record for Mitchell’s claim that his probation officer was biased against him. 

To the extent Mitchell claims that there was insufficient evidence to support a 

finding that he violated the conditions of Level IV Home Confinement, this Court 

cannot review that claim without reviewing the transcript of the December 19, 

 

5

See Del. Super. Ct. Crim. R. 32.1 (providing that a person taken into or held in custody for an 

alleged violation of partial confinement or probation shall receive written notice of the alleged 

violation; disclosure of the evidence against the person; an opportunity to appear and present 

evidence; the opportunity to question adverse witnesses; and notice of the right to retain 

counsel).

6

Jenkins v. State, 8 A.3d 1147, 1153-54 (Del. 2010) (holding that defendant having actual notice 

of alleged violation of probation could not complain that he did not receive written notice). 

Knight v. State, 2006 WL 1805865, at ¶ 7 (Del. June 28, 2006) (concluding that due process 

claim for lack of written notice was without merit in the absence of any indication that the 

probationer or his counsel was unaware of or unprepared to address the alleged violation of 

probation).
5

2014 violation hearing.7 Generally, in a violation hearing, the State is only 

required to prove by a preponderance of the evidence that the defendant violated 

the terms of his supervision.8 A preponderance of evidence means “some 

competent evidence” to “reasonably satisfy the judge that the conduct of the 

probationer has not been as good as required by the conditions of probation.”9

(9) Finally, Mitchell makes a conclusory allegation that his defense 

counsel at the violation hearing was ineffective. Mitchell’s claim is not reviewable 

on direct appeal.10

NOW, THEREFORE, IT IS ORDERED that the motion to affirm is 

GRANTED. The judgment of the Superior Court is AFFIRMED.

BY THE COURT:

/s/ Karen L. Valihura 

Justice 

 

7

Lopez v. State, 2013 WL 458174, at *1 (Del. Feb. 5, 2013) (citing Tricoche v. State, 525 A.2d 

151, 154 (Del. 1987)). 

8 Kurzmann v. State, 903 A.2d 702, 716 (Del. 2006).

9

Id. (quoting Collins v. State, 897 A.2d 159, 160 (Del. 2006)).

10 Smith v. State, 2014 WL 5421251, at *2 (Del. Oct. 23, 2014) (citing Desmond v. State, 654 

A.2d 821, 829 (Del. 1994)).