Opinion
CR. A. NOS. IN91-10-1616 IN91-10-0471
Date Submitted: July 17, 2001
Date Decided: September 6, 2001
On Remand From The Supreme Court of The State of Delaware For Further Factual Findings Supreme Court No. 220, 2001, Def. I.D.: 91009594DI
Pete C. Anderson, Delaware Correctional Center. Pro Se.
Loren C. Meyers, Deputy Attorney General, for the State of Delaware.
I. INTRODUCTION
The defendant, Pete Anderson, pled guilty on May 11, 1992, to Assault in the First Degree and Possession of a Deadly Weapon During the Commission of a Felony. On July 24, 1992, the defendant was sentenced on the Assault conviction to 10 years incarceration at Level V, to be followed by six months at Level III supervision. On the weapon charge, the defendant received a sentence of 20 years incarceration at Level V. The defendant did not file a direct appeal of his convictions or sentences.
Since his initial sentencing, the defendant has filed three motions for reduction of sentence. Each motion has been denied. Most recently, on April 26, 2001, this Court denied defendant's motion for modification of sentence on the grounds that the motion was filed more than 90 days after imposition of the sentence and no extraordinary circumstances existed, the motion was repetitive of previous requests for reduction or modification of sentence and, in any event, the sentence was appropriate as initially ordered. Defendant filed a timely appeal with the Supreme Court of Delaware.
Del. Super. Ct. Cr. R. 35(b).
Id.
Defendant has argued, inter alia, that the sentencing judge based his sentence upon inaccurate factual information. Specifically, defendant contends that the sentencing judge incorrectly assumed that the defendant had two prior violent felony convictions at the time of sentencing when, according to the defendant, he in fact had only one prior violent felony conviction. The number of prior felony convictions can affect the presumptive sentence under guidelines set forth by the Delaware Sentencing Accountability Commission ("SENTAC").
The sentencing judge has retired from the Court.
The record transmitted to the Supreme Court was insufficient to allow a determination of whether the sentencing judge based the sentence on incorrect facts.
Accordingly, the Supreme Court remanded the matter to this Court "so that the transcript of the July 24, 1992, sentencing hearing may be prepared and, if necessary, a hearing held to ascertain whether the Superior Court based its sentences on a false factual predicate." The Supreme Court directed this Court to make factual findings on this question and submit a report within 60 days. On August 16, 2001, this Court invited the State and Mr. Anderson to share with the Court any information deemed relevant to the Supreme Court's inquiry. Both have done so. To follow is this Court's report in response to the Supreme Court's remand.
Anderson v. State, Del. Supr., No. 220, 2001, Holland, J. (July 17, 2001) (ORDER at 3).
II. FACTUAL FINDINGS
The Court has obtained a copy of the transcript of the July 24, 1992, sentencing hearing. The transcript reveals that in support of its recommendation that the defendant be sentenced to the maximum sentence allowed by law the State argued that the defendant had "pled guilty to two serious felony offenses in Sussex County in 1998." The Deputy Attorney General identified the two prior felony offenses as Unlawful Sexual Intercourse in the Third Degree and Unlawful Sexual Contact First Degree. The Deputy Attorney General also described the violent nature of the offense conduct. In the announcement of its sentence, the sentencing court did not identify specifically the two prior violent felony convictions as aggravating circumstances justifying an upward departure from the SENTAC guidelines. The court did, however, identify "prior violent criminal conduct" as an aggravating circumstance.
The transcript has been docketed and will be transmitted to the Supreme Court in accordance with Delaware Supreme Court Rule 9(b).
D.I. 45. Transcript at 16.
Id. at 18.
Id.
Id. at 23-25.
Id. at 25.
This Court's independent review of defendant's criminal history as of July 24, 1992, reveals that prior to that date he had been convicted of two violent felonies. Specifically, on October 9, 1988, defendant was convicted of one count of Unlawful Sexual Intercourse Third Degree and one count of Unlawful Sexual Contact First Degree. Both offenses qualified under the then applicable SENTAC guidelines as violent felonies for purposes of determining aggravating circumstances under the guidelines. Thus, for the conviction of the charge of Possession of a Deadly Weapon During the Commission of a Felony, the sentence of 20 years at Level V was within the presumptive sentence. For the Assault in the First Degree conviction, SENTAC guidelines provided for a presumptive sentence of up to 10 years at Level V.
Mr. Anderson has argued that his two prior felony convictions should be deemed as one conviction for purposes of determining the existence of sentencing aggravators. He reasons that because both convictions occurred as a result of a single plea agreement, and because he was sentenced for both convictions on the same day, the Court must consider the two convictions as a single conviction for the purpose of sentencing under the SENTAC guidelines. He draws an analogy to the habitual offender statute, 11 Del. C. § 4214, and the interpretation of the statute which provides that multiple convictions obtained on the same day count as only one conviction for purposes of determining habitual offender status. See Hall v. State, Del. Supr., 473 A.2d 352 (1984); Buckingham v. State, Del. Supr., 482 A.2d 327 (1984). The analogy is misplaced. The Delaware Supreme Court has rejected the notion that interpretations of the habitual offender statute are helpful (much less controlling) when interpreting the SENTAC guidelines. Siple v. State, Del. Supr., 701 A.2d 79, 85 (1997) (noting that the purposes of the habitual offender statute and the SENTAC guidelines are different, and that convictions should be considered separately under SENTAC guidelines when they precede the sentencing at issue). The sentencing judge correctly considered the defendant's prior felony convictions as separate events under SENTAC guidelines.
Relevant portions of the applicable SENTAC Guidelines are appended to this report.
III. CONCLUSION
Based on the foregoing, the Court concludes that the sentencing judge did not base his sentence on a false factual predicate, and that the sentences ordered on July 24, 1992, were within the presumptive sentencing guidelines set forth by SENTAC.