Herbert v. State

• Court: Supreme Court of Delaware
• Decided: November 7, 2023
• Docket: 373, 2022
• Status: Published

Opinion

IN THE SUPREME COURT OF THE STATE OF DELAWARE

JOHN HERBERT, § § No. 373, 2022 Defendant Below, § Appellant, § Court Below–Superior Court § of the State of Delaware v. § § Cr. ID No. 2005000034 (N) STATE OF DELAWARE, § § Appellee. §

Submitted: October 11, 2023 Decided: November 7, 2023

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

ORDER

After careful consideration of the parties’ briefs, the arguments of counsel,

and the record on appeal, we conclude that:

(1) Appellant’s conviction should be affirmed on the basis of and for the

reasons assigned by the Superior Court in its March 17, 2022 memorandum opinion

and August 8, 2022 memorandum opinion.

(2) Appellant also challenged the sentence imposed by the Superior Court

in its September 15, 2022 sentencing order. Appellant argues that the Superior Court

erred in concluding that 11 Del. C. § 4205A(d)(1) established a five-year minimum

mandatory sentence for appellant’s conviction for Unlawful Sexual Contact First

Degree. After filing this appeal, appellant filed a motion in the Superior Court raising the same argument. The trial court deferred ruling on appellant’s motion

because appellant intended to raise the issue on appeal.1

(3) We conclude that the Superior Court correctly imposed a minimum

mandatory sentence of five years of unsuspended Level 5 incarceration under 11

Del. C. § 4205A(d)(1). Section 4025A concerns additional penalties for serious sex

offenders or pedophile offenders. Subsection (d)(1) states that “[n]otwithstanding

any provision of this chapter or any other laws to the contrary, the Superior Court,

upon the State’s application, shall sentence a defendant convicted of any crime set

forth in § 769 or § 783(4) of this title to not less than 5 years to be served at Level V

if the victim of the crime is a child less than 7 years of age.” It is undisputed that

appellant was convicted under 11 Del. C. § 769 for unlawful sexual contact and that

the victim was less than seven years old at the time of the offense.

(4) Appellant, however, argues that because § 4205A(d)(1) does not

contain similar language to other statutory provisions that impose minimum

mandatory sentences, such as the habitual offender statute,2 the Superior Court had

discretion to suspend some or all of the five-year sentence required by Section

4205A(d)(1). Appellant points out that other provisions in Title 11 that impose a

1 See App. to Opening Br. at A404. 2 The habitual offender statute states, for example, that “[n]otwithstanding any provision of this title to the contrary, any minimum sentence required to be imposed . . . shall not be subject to suspension by the court, and shall be served in its entirety at full custodial Level V institutional setting without the benefit of probation or parole[.]” 11 Del. C. § 4214(e) (emphasis added). 2 minimum mandatory sentence specifically state that the minimum sentence “shall

not be subject to suspension.”3 The absence of that language in Section 4205A(d)(1)

does not, as appellant argues, allow the Superior Court to suspend any portion of the

five-year minimum sentence. Here, 11 Del. C. § 4204(d) controls. It states that

“[n]otwithstanding anything in this Criminal Code to the contrary, probation or a

suspended sentence shall not be substituted for imprisonment where the statute

specifically indicates that a prison sentence is a mandatory sentence, a minimum

sentence, a minimum mandatory sentence or a mandatory minimum sentence, or

may not otherwise be suspended.”4 Section 4205A(d)(1) creates a minimum

sentence for convictions under Section 769, and the trial court therefore did not have

discretion to sentence appellant to anything less than five years of unsuspended

Level 5 incarceration.

NOW, THEREFORE, IT IS ORDERED that the judgment of the Superior

Court is AFFIRMED and appellant’s motion to correct an illegal sentence is

DENIED.

BY THE COURT:

/s/ N. Christopher Griffiths Justice

3 See 11 Del. C. §§ 1448(e)(4), 4214(e). 4 11 Del. C. § 4204(d). 3