Abbott v. State

Opinion

IN THE SUPREME COURT OF THE STATE OF DELAWARE

LENELL T. ABBOTT, § § Defendant Below, § No. 373, 2025 Appellant, § § Court Below: Superior Court v. § of the State of Delaware § STATE OF DELAWARE, § Cr. ID No. 2305002463A (K) § Appellee. §

Submitted: July 8, 2026 Decided: July 21, 2026

Before SEITZ, Chief Justice; TRAYNOR, and GRIFFITHS, Justices.

Upon appeal from the Superior Court. AFFIRMED.

Anthony J. Capone, Esquire, OFFICE OF THE PUBLIC DEFENDER, Wilmington, Delaware, for Defendant Below/Appellant.

Matthew C. Bloom, Esquire, DELAWARE DEPARTMENT OF JUSTICE, Wilmington, Delaware, for Appellee. SEITZ, Chief Justice:

Under the Delaware criminal code, a “person prohibited” cannot possess “a

deadly weapon or ammunition.” At issue in this appeal is whether the State can

secure separate convictions and impose separate sentences against a person

prohibited for each deadly weapon possessed. Stated another way, does the statutory

language “a deadly weapon” mean one deadly weapon, or does it mean any deadly

weapon, which can be read as more than one deadly weapon? We hold that “a”

deadly weapon means “one” deadly weapon and affirm the defendant’s separate

convictions and sentences for each firearm and ammunition.

I.

Section 1448 of the Delaware Criminal Code provides that “[a]ny person who

has been convicted for the unlawful use, possession or sale of a . . . narcotic drug or

controlled substance . . . . who knowingly possesses, purchases, owns or controls a

deadly weapon or ammunition for a firearm . . . shall be guilty of possession of a

deadly weapon or ammunition for a firearm by a person prohibited.”1 In 2001,

Lenell Abbott pleaded guilty in Virginia to the charge of possession with intent to

distribute cocaine.2 In 2008, the Delaware Court of Common Pleas convicted Abbott

1 11 Del. C. § 1448(a)(3) & (b). 2 App. to Opening Br. at A020, A199 [hereinafter A_ ].

2 of possession with intent to deliver a non-narcotic schedule I controlled substance.3

Thus, Abbott is a “person prohibited” from knowingly possessing, purchasing,

owning, or controlling a deadly weapon or ammunition for a firearm.

In 2023, the police went to Abbott’s residence in Dover, Delaware.4 Abbott

told them that he had a firearm hidden inside an air-conditioning vent.5 The police

also found ammunition for the weapon.6 The police took Abbott to the station and

interviewed him, before returning to the residence again with Abbott. On the return

visit, Abbott told the police of a second firearm hidden in a different air-conditioning

vent.7 The police also found ammunition corresponding to that firearm.8

A Superior Court grand jury indicted Abbott on two counts of possession of a

firearm by a person prohibited (PFBPP) and one count of possession of ammunition

by a person prohibited (PABPP).9 Abbott waived his right to a jury trial. After a

bench trial, the Superior Court convicted Abbott on all three counts. On the first

3 A016, A198–99. 4 A092–93. 5 A094. 6 Id. 7 A104–05, A149–51. 8 Id. 9 A020–23. Abbott was also charged with drug offenses, which were severed from the gun charges. A019. Following Abbott’s PFBPP and PABPP convictions, the State dropped the drug charges. A008.

3 PFBPP count, the court sentenced Abbott to fifteen years at Level V incarceration,

suspended after five years for two years at Level III probation. On the second PFBPP

count, the court imposed fifteen years at Level V, suspended after three years for two

years at Level II. Finally, on the PABPP count, the court sentenced Abbott to eight

years at Level V, suspended for one year at Level III.10

On appeal, Abbott argues that his convictions are multiplicitous and therefore

violate the Double Jeopardy Clause of the U.S. Constitution. He claims that the

Superior Court should have merged the separate convictions into a single count for

sentencing.11 Because Abbott did not make this argument in the Superior Court, we

review for plain error.12 But “plain error review in a multiplicity challenge not

contesting the facts is effectively de novo.”13

II.

To challenge his convictions, Abbott invokes the multiplicity doctrine. As we

explained in Sisson v. State:

The “multiplicity doctrine” is a subset of the protections afforded under the Double Jeopardy Clause. The Double Jeopardy Clause, as a constitutional principle, protects a defendant (1) against successive prosecutions; (2) against multiple charges under separate statutes; and

10 A252–54. 11 Opening Br. 3. 12 Patrick v. State, 261 A.3d 1282, 1287 (Del. 2021). 13 White v. State, 243 A.3d 381, 397 (Del. 2020).

4 (3) against being charged multiple times under the same statute. Multiplicity is the “charging of a single offense in more than one count of an indictment.” Dividing “a single offense into multiple counts of an indictment violates the double jeopardy provisions” of both the Delaware and the United States Constitutions.14

Here, the State charged Abbott with the same statutory offense in two counts

of the indictment. Thus, the question boils down to what is the “unit of prosecution”

under the statute. Did the General Assembly intend to allow separate counts for each

deadly weapon, or a single count for all deadly weapons?

The relevant statute, Section 1448, is unambiguous and therefore “conclusive

of the legislature’s intent.”15 Any person prohibited who possesses “a deadly

weapon” commits a criminal offense. Unlike “any,” which can precede singular or

plural objects, the word “a” unambiguously sets the unit of prosecution for each

offense as one deadly weapon.16 This distinction has been recognized in “a

consistent pattern” of judicial decisions across the country:

[C]ourts that have reviewed the term “any firearm” . . . have found the allowable unit of prosecution ambiguous and have permitted only one conviction for simultaneous possession of multiple firearms. But in

14 903 A.2d 288, 309 (Del. 2006) (quoting Feddiman v. State, 558 A.2d 278, 288 (Del. 1989)). 15 Grand Ventures, Inc. v. Whaley, 632 A.2d 63, 68 (Del. 1993).

Compare A, Merriam-Webster Dictionary (“function word before singular nouns”); with Any, 16

Merriam-Webster Dictionary (“one or some indiscriminately of whatever kind”).

5 states with statutes that use the term “a firearm,” courts have found multiple convictions are allowed.17

To hold otherwise would ignore the plain meaning of “a deadly weapon,” and put us

out of step with other courts interpreting the same words.

Abbott concedes that the statute’s plain language is against him, but offers

three reasons why “the distinction between single and multiple weapons is both less

significant and less clear than it may seem.”18 He argues that (i) this Court’s

precedent has left the issue unsettled; (ii) legislative history shows that the General

Assembly did not intend multiple convictions; and (iii) another statute vitiates the

otherwise apparent difference between “a” and “any.” As explained below, however,

none of these arguments allow us to ignore Section 1448’s plain language.

A.

Abbott claims that “this Court has yet to fully analyze the merger of multiple

firearms convictions under § 1448,” and that the issue “is ripe for further

examination.”19 We disagree. In Buchanan v. State, we denied a petition for post-

17 McGlasten v. State, 328 So. 3d 101, 104 (Miss. 2021) (internal citations omitted) (emphasis in original) (citing Taylor v. State, 929 N.E.2d 912, 922 (Ind. Ct. App. 2010) (allowing multiple convictions where statute specified “a” firearm or deadly weapon); State v. Kidd, 562 N.W.2d 764, 766 (Iowa 1997) (same); State v. Lindsey, 583 So. 2d 1200, 1204 (La. Ct. App. 1991) (same); State v. Stratton, A.2d 986, 989 (N.H. 1989) (same)); see also United States v. Freisinger, 937 F.2d 383, 390 (8th Cir. 1991) (same); United States v. Alverson, 666 F.2d 341, 347 (9th Cir. 1982) (same); State v. Nichols, 865 S.W.2d 435, 437 (Mo. App. 1993) (same). 18 Opening Br. 12 (“Although § 1448 refers to ‘a deadly weapon’ and ‘a firearm’ . . . .”). 19 Id. at 3, 10.

6 conviction relief based on defense counsel’s alleged failure to argue that “three

counts of possession of a deadly weapon by a person prohibited should have been

merged into a single offense . . . .”20 Buchanan had been “found in possession of

two different handguns as well as ammunition for one of the guns.”21 We explained

that “[m]erger was not appropriate” because “[e]ach handgun and the ammunition

constituted a different offense.”22 Thus, “counsel committed no error in failing to

challenge the indictment on these grounds.”23 In other words, Buchanan expressly

held that the correct unit of prosecution for a PFBPP charge is each illegally

held firearm.

Abbott argues that Buchanan is of little precedential value because our

subsequent decision in Brown v. State called into question its holding.24 In Brown,

we held that PFBPP and PABPP convictions do not merge, because each requires

proof of a fact that the other does not.25 But we left open “the question ostensibly

answered, but without analysis or the citation of authority, in Buchanan v. State:

20 26 A.3d 213, 2011 WL 3452148, at *4 (Del. Aug. 8, 2011) (TABLE). 21 Id. 22 Id. 23 Id. 24 255 A.3d 951, 2021 WL 2588923 (Del. June 24, 2021) (TABLE). 25 Possession of a firearm versus possession of ammunition. Id. at *1.

7 whether 11 Del. C. § 1448 contemplates separate PFBPP counts—and separate

sentencing upon conviction—for the simultaneous possession of multiple

firearms.”26

Three months later, however, in Patrick v. State, we again addressed merger

under Section 1448. There, a defendant incurred two PFBPP convictions, not

because he possessed two firearms, but because he was a person prohibited on

separate grounds. On appeal, he argued that his convictions violated the multiplicity

doctrine, as “the relevant unit of prosecution is the unlawful act of possession of a

firearm or ammunition by a person prohibited, and not each way a person qualifies

as a prohibited person.”27 We agreed, holding that “the unit of prosecution is the act

of possession of a deadly weapon by a person prohibited and not the way in which a

defendant qualifies as a person prohibited.”28

Importantly, in Patrick we observed that this holding was “supported by our

decision in Buchanan v. State.”29 We reasoned that Buchanan’s holding – that “a

charge for each act of possession under the statute was proper” – also suggested that

“the relevant unit of prosecution is each act of possession and not [one’s] status as a

26 Id. (footnote omitted). 27 Patrick, 261 A.3d at 1288. 28 Id. at 1289. 29 Id. at 1290.

8 person prohibited.”30 We further explained that Brown “agreed with this approach”

because it affirmed “convictions on two counts of possession of a deadly weapon or

ammunition by a person prohibited based on [the] possession of a single firearm and

ammunition for that firearm.”31

In Buchanan, this Court held that the correct unit of prosecution for a PFBPP

charge is each illegally held firearm. It controls the outcome of this appeal.

B.

Abbott also argues that Section 1448’s legislative history renders the statute

ambiguous. Abbott points out that, until 1992, Section 1448 referred to “any deadly

weapon.”32 That year, HB 558 amended Section 1448 to refer to “a deadly weapon”

instead of “any deadly weapon.”33 Abbott claims that this change “may have been

entirely inadvertent” because the bill’s synopsis stated that it “track[ed] favorably

with Federal Law” and its stated purpose was unrelated to the issue raised here.34

30 Id. 31 Id. at 1290–91. 32 Opening Br. 13 (emphasis added). 33 Ex. A to Opening Br. (Del. H.B. 558, 136th Gen. Assem. (1992) (“An Act to Amend Chapter 5, Title 11 of the Delaware Code Providing Certain Punishments Upon Conviction for the Crime of Possession of a Deadly Weapon by a Person Prohibited and Relating to the Definition Thereof.”) [hereinafter H.B. 558]. 34 Opening Br. 14–15 (quoting H.B. 558).

9 The federal law in question, 18 U.S.C. § 922, bars persons prohibited from

possessing “any firearm or ammunition . . . .”35 For that reason, the U.S. Courts of

Appeals have found Section 922’s unit of prosecution ambiguous.36 Resolving the

ambiguity in defendants’ favor, those courts have held that a defendant can be only

charged “with one violation” no matter “the actual quantity of firearms involved.”37

Abbott claims that because HB 558’s synopsis says that Section 1448, as amended,

tracks Section 922, we must find the two statutes coextensive.

Here, however, “as with other sources of the legislative history, the Court may

only look to the synopsis if the Court finds that the statutory language is ambiguous

and requires interpretation.”38 Because Section 1448 is unambiguous, we do not

consult HB 558’s synopsis in search of an ambiguity.

35 18 U.S.C. § 922(g) (emphasis added). 36 See State v. Fourth Jud. Dist. Ct., 481 P.3d 848, 852 (Nev. 2021) (collecting cases). 37 Id. (quoting United States v. Buchmeier, 255 F.3d 415, 422 (7th Cir. 2001)). The parties dispute whether the rule requiring those courts to resolve ambiguities for defendants – the rule of lenity – applies to the Delaware Criminal Code. Because Section 1448 is unambiguous, we do not reach the issue. 38 Bd. of Adjustment of Sussex Cnty. v. Verleysen, 36 A.3d 326, 332 (Del. 2012); see also, e.g., De Los Santos v. Allstate Prop. & Cas. Ins. Co., 345 A.3d 959, 2025 WL 2092402, at *4 (Del. July 25, 2025) (TABLE) (acknowledging a proposed statutory interpretation might “implement[] the General Assembly’s intent to ‘prevent coverage gaps’ and ‘reduce the number of uninsured drivers’” but disregarding it because “in the absence of ambiguity, the statute’s text ‘must be regarded as conclusive of legislature’s intent’” (citations omitted)).

10 C.

Finally, Abbott argues that Section 1448 is ambiguous because the General

Assembly intended for singular and plural words to be read interchangeably. Abbott

relies on Section 223 of the Delaware Criminal Code, which states:

Unless the context otherwise requires, words denoting the singular number may, and where necessary shall, be construed as denoting the plural number, and words denoting the plural number may, and where necessary shall, be construed as denoting the singular number, and words denoting the masculine gender may, and where necessary shall, be construed as denoting the feminine gender or the neuter gender.39

For Section 223 to apply here, however, the context must allow “deadly

weapon” to be substituted for “deadly weapons.” It does not. The difference

between “any” and “a” illustrates why. The word “any” before a plural word can be

“used to indicate an[y] amount greater than zero” – one or multiple.40 When

preceded by the word “any,” “deadly weapon” and “deadly weapons” can be used

interchangeably. If Section 1448 referred to “any deadly weapons,” Section 223

would apply. But Section 1448 refers to “a deadly weapon.” The article “a” limits

the statute to the singular, and the context does not permit replacing “deadly weapon”

with “deadly weapons.” “A deadly weapons” is grammatically incorrect. Because

39 11 Del. C. § 223. 40 Any – Simple Definition, Merriam-Webster Dictionary (for example, “I can’t find any stamps.”).

11 the statutory context does not allow the singular and plural to be substituted in this

statute, Section 223 does not apply.

Abbott claims that our decision in Mills v. State requires us to apply Section

223.41 But Abbott misreads Mills, which did not address Section 223 or the issue at

hand. In Mills, we held that a statute criminalizing the assault of law enforcement

officers was ambiguous as to its unit of prosecution.42 But that statute contained two

possible units of prosecution – “an arrest” and “a peace officer” – to which “the ‘a’

versus ‘any’ logic could apply with equal force . . . .”43 We observed that the

distinction was not useful in choosing between the two. Mills does not help Abbott

in this appeal.44

III.

The State properly charged Abbott with three counts of possession by a person

prohibited: one count for each of the two firearms, and one count for the ammunition.

Abbott could be sentenced separately for each count. Whether the result is unfair,

41 201 A.3d 1163 (Del. 2019). 42 Id. at 1170–71. 43 Id. at 1170. 44 Abbott argues with little elaboration that the Court should revisit its holding in Brown that a firearm and ammunition charge do not merge. We decline to do so in this appeal. Abbott also argues for the first time in his reply brief that ammunition is a lesser-included offense under 11 Del. C. § 206 and therefore that conviction violates the Double Jeopardy Clause, and these circumstances lack sufficient separation of time, location, and purpose to maintain separate PFBPP convictions. Arguments not raised in the opening brief are waived. Supr. Ct. R. 14(b)(vi)(A)(3).

12 and whether the statute should be amended, is for the General Assembly and not the

courts. The judgment of the Superior Court is affirmed.