IN THE SUPREME COURT OF THE STATE OF DELAWARE
JAMES LAWHORN, § § No. 40, 2016 Defendant Below, § Appellant, § Court Below: Superior Court § of the State of Delaware v. § § Cr. ID 1503000591 STATE OF DELAWARE, § § Plaintiff Below, § Appellee. §
Submitted: August 24, 2016 Decided: November 9, 2016
Before STRINE, Chief Justice; HOLLAND and SEITZ, Justices.
ORDER
This 9th day of November 2016, upon consideration of the appellant’s
opening brief, the appellee’s motion to affirm, the supplemental submissions of the
parties, and the record below, it appears to the Court that:
(1) The appellant, James Lawhorn, filed this appeal from a Superior Court
order sentencing him for Sex Offender Unlawful Sexual Contact Against a Child
and Unlawful Sexual Contact in the First Degree. The State of Delaware has filed
a motion to affirm the judgment below on the ground that it is manifest on the face
of Lawhorn’s opening brief that his appeal is without merit. We agree and affirm.
(2) The record reflects that, in March 2015, a New Castle County grand
jury indicted Lawhorn for multiple sexual offenses, including Rape in the First Degree. On September 17, 2015, Lawhorn pled guilty to Sex Offender Unlawful
Sexual Contact Against a Child and Unlawful Sexual Contact in the First Degree.
In exchange for Lawhorn’s guilty plea, the State agreed to enter a nolle prosequi
on the remaining charges and to recommend twenty-five years of Level V
incarceration for Sex Offender Unlawful Sexual Contact Against a Child (which
was the minimum-mandatory sentence) and eight years of Level V incarceration,
suspended for decreasing levels of supervision, for Unlawful Sexual Contact in the
First Degree. Lawhorn and the State requested a presentence investigation.
(3) In the Truth-In-Sentencing Guilty Plea Form, Lawhorn indicated that
he freely and voluntarily decided to plead guilty, he understood that he was
waiving certain constitutional rights by pleading guilty, and no one had promised
him a particular sentence. The form reflected that Lawhorn faced a maximum
penalty of life imprisonment. During his guilty plea colloquy with the Superior
Court, Lawhorn stated that he understood the Superior Court was not bound by the
recommended sentence, no one promised him a particular sentence, he faced up to
life imprisonment, and that he was guilty of Sex Offender Unlawful Sexual
Contact Against a Child and Unlawful Sexual Contact in the First Degree. The
Superior Court determined that Lawhorn’s guilty plea was knowing, intelligent,
and voluntary and accepted the plea.
2 (4) Lawhorn was sentenced on January 22, 2016. At the sentencing
hearing, the prosecutor acknowledged the minimum mandatory of twenty-five
years Level V incarceration for Sex Offender Unlawful Sexual Contact Against a
Child and explained why the State stood by the sentencing recommendation made
at the time of the guilty plea. The prosecutor reviewed Lawhorn’s previous
criminal offenses, including his 1991 conviction for Unlawful Sexual Contact in
the Second Degree, which involved an eleven-year old child, his 2002 conviction
for Rape in the Second Degree with a victim who was less than twelve years old,
and the circumstances of his new offenses. The Superior Court interrupted the
prosecutor to note that the victim in the 2002 conviction was nine-years old. The
prosecutor also stated that his office had spoken with the victim’s mother, who
wanted the Superior Court to be aware that the victim was in therapy and would be
affected her entire life.
(5) Lawhorn’s counsel did not object to the prosecutor’s statements. He
stated that he believed the minimum mandatory sentence of twenty-five years as
requested by the State was appropriate in light of Lawhorn’s record. He
acknowledged Lawhorn’s previous crimes, but emphasized that Lawhorn was
molested at a young age himself and suffered from impulse-control and other
behavioral issues as a result of his mother dropping him when he was a child.
Lawhorn then read a letter to the Superior Court in which he took responsibility for
3 his wrongdoing and described his difficult childhood. After the Superior Court
questioned whether Lawhorn was taking responsibility for his actions or blaming
others for his problems, Lawhorn apologized for his wrongdoing. The Superior
Court accepted and read Lawhorn’s letter.
(6) In the course of reading his letter, Lawhorn claimed that he was
promised a sentence of twenty-five years. The prosecutor pointed out that the
Truth-In-Sentencing Guilty Plea Form reflected the twenty-five year minimum
mandatory for Sex Offender Unlawful Sexual Contact Against a Child and that
Lawhorn faced a maximum sentence of life imprisonment. Upon questioning by
the Superior Court, Lawhorn admitted that the Superior Court judge who accepted
his guilty plea told him that the court was not bound by the sentencing
recommendation and could sentence Lawhorn to up to life imprisonment.
(7) The Superior Court then proceeded to sentence Lawhorn. The
Superior Court acknowledged Lawhorn’s difficult childhood and that sexual abuse
in one generation can lead to sexual abuse in the next generation. The Superior
Court emphasized Lawhorn’s criminal record, especially his sexual abuse of
children, which included an eleven-year old victim and two nine-year old victims.
The Superior Court judge also stated that he did not believe Lawhorn’s expressions
of remorse, but appreciated Lawhorn stating that he wished to reform. The
Superior Court expressed concern at the risk Lawhorn posed to children as long as
4 he was outside of prison and sentenced Lawhorn to life imprisonment for Sex
Offender Unlawful Sexual Contact Against a Child. The Superior Court sentenced
Lawhorn to eight years of Level V incarceration for Unlawful Sexual Contact in
the First Degree. This appeal followed.
(8) On appeal, Lawhorn argues that the State violated his due process
rights when the prosecutor made statements during sentencing about the
aggravating circumstances of his offenses and his bad character. Lawhorn
contends that these statements could only have had the effect of escalating
Lawhorn’s sentence after the State had agreed in the plea agreement to recommend
the minimum mandatory sentence of twenty-five years of Level V incarceration for
Sex Offender Unlawful Sexual Contact Against a Child and eight years of Level V
incarceration, suspended for decreasing levels of supervision, for Unlawful Sexual
Contact in the First Degree. Lawhorn’s arguments are similar to the arguments
made in Jones v. State.1 In Jones, this Court found no plain error where the
Superior Court imposed eighteen years of Level V incarceration, instead of the
eight years of Level V incarceration the State agreed to recommend in the plea
agreement, after the prosecutor emphasized aggravating circumstances and read a
victim impact statement during sentencing.2
1 2016 WL 3568181 (Del. June 22, 2016). 2 Id. at *2-3. 5 (9) Like Jones, Lawhorn failed to object to the prosecutor’s statements at
sentencing or otherwise preserve his claim of error. We therefore review his
claims for plain error.3 “[T]he doctrine of plain error is limited to material defects
which are apparent on the face of the record; which are basic, serious and
fundamental in their character, and which clearly deprive an accused of a
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IN THE SUPREME COURT OF THE STATE OF DELAWARE
JAMES LAWHORN, § § No. 40, 2016 Defendant Below, § Appellant, § Court Below: Superior Court § of the State of Delaware v. § § Cr. ID 1503000591 STATE OF DELAWARE, § § Plaintiff Below, § Appellee. §
Submitted: August 24, 2016 Decided: November 9, 2016
Before STRINE, Chief Justice; HOLLAND and SEITZ, Justices.
ORDER
This 9th day of November 2016, upon consideration of the appellant’s
opening brief, the appellee’s motion to affirm, the supplemental submissions of the
parties, and the record below, it appears to the Court that:
(1) The appellant, James Lawhorn, filed this appeal from a Superior Court
order sentencing him for Sex Offender Unlawful Sexual Contact Against a Child
and Unlawful Sexual Contact in the First Degree. The State of Delaware has filed
a motion to affirm the judgment below on the ground that it is manifest on the face
of Lawhorn’s opening brief that his appeal is without merit. We agree and affirm.
(2) The record reflects that, in March 2015, a New Castle County grand
jury indicted Lawhorn for multiple sexual offenses, including Rape in the First Degree. On September 17, 2015, Lawhorn pled guilty to Sex Offender Unlawful
Sexual Contact Against a Child and Unlawful Sexual Contact in the First Degree.
In exchange for Lawhorn’s guilty plea, the State agreed to enter a nolle prosequi
on the remaining charges and to recommend twenty-five years of Level V
incarceration for Sex Offender Unlawful Sexual Contact Against a Child (which
was the minimum-mandatory sentence) and eight years of Level V incarceration,
suspended for decreasing levels of supervision, for Unlawful Sexual Contact in the
First Degree. Lawhorn and the State requested a presentence investigation.
(3) In the Truth-In-Sentencing Guilty Plea Form, Lawhorn indicated that
he freely and voluntarily decided to plead guilty, he understood that he was
waiving certain constitutional rights by pleading guilty, and no one had promised
him a particular sentence. The form reflected that Lawhorn faced a maximum
penalty of life imprisonment. During his guilty plea colloquy with the Superior
Court, Lawhorn stated that he understood the Superior Court was not bound by the
recommended sentence, no one promised him a particular sentence, he faced up to
life imprisonment, and that he was guilty of Sex Offender Unlawful Sexual
Contact Against a Child and Unlawful Sexual Contact in the First Degree. The
Superior Court determined that Lawhorn’s guilty plea was knowing, intelligent,
and voluntary and accepted the plea.
2 (4) Lawhorn was sentenced on January 22, 2016. At the sentencing
hearing, the prosecutor acknowledged the minimum mandatory of twenty-five
years Level V incarceration for Sex Offender Unlawful Sexual Contact Against a
Child and explained why the State stood by the sentencing recommendation made
at the time of the guilty plea. The prosecutor reviewed Lawhorn’s previous
criminal offenses, including his 1991 conviction for Unlawful Sexual Contact in
the Second Degree, which involved an eleven-year old child, his 2002 conviction
for Rape in the Second Degree with a victim who was less than twelve years old,
and the circumstances of his new offenses. The Superior Court interrupted the
prosecutor to note that the victim in the 2002 conviction was nine-years old. The
prosecutor also stated that his office had spoken with the victim’s mother, who
wanted the Superior Court to be aware that the victim was in therapy and would be
affected her entire life.
(5) Lawhorn’s counsel did not object to the prosecutor’s statements. He
stated that he believed the minimum mandatory sentence of twenty-five years as
requested by the State was appropriate in light of Lawhorn’s record. He
acknowledged Lawhorn’s previous crimes, but emphasized that Lawhorn was
molested at a young age himself and suffered from impulse-control and other
behavioral issues as a result of his mother dropping him when he was a child.
Lawhorn then read a letter to the Superior Court in which he took responsibility for
3 his wrongdoing and described his difficult childhood. After the Superior Court
questioned whether Lawhorn was taking responsibility for his actions or blaming
others for his problems, Lawhorn apologized for his wrongdoing. The Superior
Court accepted and read Lawhorn’s letter.
(6) In the course of reading his letter, Lawhorn claimed that he was
promised a sentence of twenty-five years. The prosecutor pointed out that the
Truth-In-Sentencing Guilty Plea Form reflected the twenty-five year minimum
mandatory for Sex Offender Unlawful Sexual Contact Against a Child and that
Lawhorn faced a maximum sentence of life imprisonment. Upon questioning by
the Superior Court, Lawhorn admitted that the Superior Court judge who accepted
his guilty plea told him that the court was not bound by the sentencing
recommendation and could sentence Lawhorn to up to life imprisonment.
(7) The Superior Court then proceeded to sentence Lawhorn. The
Superior Court acknowledged Lawhorn’s difficult childhood and that sexual abuse
in one generation can lead to sexual abuse in the next generation. The Superior
Court emphasized Lawhorn’s criminal record, especially his sexual abuse of
children, which included an eleven-year old victim and two nine-year old victims.
The Superior Court judge also stated that he did not believe Lawhorn’s expressions
of remorse, but appreciated Lawhorn stating that he wished to reform. The
Superior Court expressed concern at the risk Lawhorn posed to children as long as
4 he was outside of prison and sentenced Lawhorn to life imprisonment for Sex
Offender Unlawful Sexual Contact Against a Child. The Superior Court sentenced
Lawhorn to eight years of Level V incarceration for Unlawful Sexual Contact in
the First Degree. This appeal followed.
(8) On appeal, Lawhorn argues that the State violated his due process
rights when the prosecutor made statements during sentencing about the
aggravating circumstances of his offenses and his bad character. Lawhorn
contends that these statements could only have had the effect of escalating
Lawhorn’s sentence after the State had agreed in the plea agreement to recommend
the minimum mandatory sentence of twenty-five years of Level V incarceration for
Sex Offender Unlawful Sexual Contact Against a Child and eight years of Level V
incarceration, suspended for decreasing levels of supervision, for Unlawful Sexual
Contact in the First Degree. Lawhorn’s arguments are similar to the arguments
made in Jones v. State.1 In Jones, this Court found no plain error where the
Superior Court imposed eighteen years of Level V incarceration, instead of the
eight years of Level V incarceration the State agreed to recommend in the plea
agreement, after the prosecutor emphasized aggravating circumstances and read a
victim impact statement during sentencing.2
1 2016 WL 3568181 (Del. June 22, 2016). 2 Id. at *2-3. 5 (9) Like Jones, Lawhorn failed to object to the prosecutor’s statements at
sentencing or otherwise preserve his claim of error. We therefore review his
claims for plain error.3 “[T]he doctrine of plain error is limited to material defects
which are apparent on the face of the record; which are basic, serious and
fundamental in their character, and which clearly deprive an accused of a
substantial right, or which clearly show manifest injustice.”4 In plain error review,
the defendant has the burden to demonstrate actual prejudice.5 Lawhorn has not
met this burden.
(10) At the sentencing hearing, the State stated that it stood by its
sentencing recommendation at the time of the guilty plea. Even where a plea
agreement exists, the State is entitled to support its plea agreement with the factors
relevant to the reasonableness of the sentence recommendation.6 Although the
State could have shown more restraint in its comments at sentencing, under a plain
3 Id. at *2 (reviewing claim that prosecutor breached plea agreement at sentencing where defendant did not object at sentencing under plain error standard of review); Wainwright v. State, 504 A.2d 1096, 1100 (Del. 1986) (“Failure to make an objection [below] constitutes a waiver of the defendant’s right to raise that issue on appeal, unless the error is plain.”); see also Puckett v. United States, 556 U.S. 129, 139–43 (2009) (plain error review appropriate for government’s breach of plea agreement where the defendant failed to object). 4 Wainwright, 504 A.2d at 1100. 5 Capano v. State, 781 A.2d 556, 662–63 (Del. 2001) (“To establish plain error, Capano has the burden of showing actual prejudice.”). 6 Jones, 2016 WL 3568181, at *2. 6 error standard of review we find that the State’s comments failed to rise to the level
of subverting the integrity of the plea bargaining process.7
(11) Nowhere in its statements did the State seek a higher sentence and
although the State referred to circumstances in the record regarding Lawhorn’s past
conduct that rationally supported a higher sentence, those facts were ones of which
the trial court was undoubtedly aware. For that reason, of course, there was little,
to no need, for the State to refer to them, given that the trial judge could not enter a
sentence less than the mandatory minimum to which the State was recommending.
But, the State did not make inflammatory remarks about those facts and the State
was entitled to explain the reasoning for its recommendations, and those facts
played some role in that regard. Nonetheless, we note that when the State has
reached a plea agreement and the defendant is not seeking a sentence less than the
State’s recommendation, the State should be cautious in commenting on
aggravating factors, because if, when objectively read, those remarks seem to be
only useful in suggesting a sentence higher than the State agreed to, they can
support reversal based on the State’s failure to adhere in good faith to its bargain.
7 See Santobello v. New York, 404 U.S. 257, 262 (1971) (recognizing the “interests of justice and appropriate recognition of the duties of the prosecution in relation to promises made in the negotiation of pleas of guilty” as the important interests at stake when prosecutors violate the terms of plea agreements); Jones, 2016 WL 3568181, at *1 (concluding prosecutor’s comments did not undermine the integrity of the plea bargaining process); Cole v. State, 922 A.2d 354, 359–60 (Del. 2005) (emphasizing the special role of prosecutors as representatives of the people and justice in the context of plea negotiations).
7 (12) For reasons we have suggested, however, even if Lawhorn had shown
a violation of the plea agreement, he has failed to establish that he suffered
prejudice as a result of the prosecutor’s conduct. The Superior Court always had
discretion to sentence Lawhorn to more than twenty-five years of Level V
incarceration, which Lawhorn acknowledged during his guilty plea colloquy.
Lawhorn also acknowledged that he faced life imprisonment for his crimes. Based
on the Superior Court’s comment during the prosecutor’s statements that one of
Lawhorn’s previous victims was nine years old, it is plain that the Superior Court
was already familiar with the details of Lawhorn’s criminal history.8 The Superior
Court also questioned whether Lawhorn was in fact taking responsibility for his
actions as he claimed and expressed concerns regarding the risk Lawhorn posed to
children. When considered in light of these facts, we find no prejudice to Lawhorn
and no plain error in the sentencing proceedings.
8 See Appellant’s Op. Br. App. at A35 Tr. 3:11 (sentencing judge pausing prosecutor and interjecting on his own that 2002 victim was nine-years old); Appellant’s Op. Br. App. at A39 Tr. 20:6-17 (sentencing judge acknowledging Lawhorn’s difficult childhood, but also recognizing Lawhorn’s “horrendous” criminal history, especially his abuse of children). See also Jones, 2016 WL 3568181, at *3 (finding no prejudice resulted from prosecutor’s comments at sentencing because record reflected that trial judge read presentence investigation that highlighted defendant’s violent criminal history); Teti v. State, 2006 WL 1788351, at *1-2 (Del. June 28, 2006) (rejecting claim that the State breached plea agreement where the Superior Court heard from the victim and the defendant and found multiple aggravating factors before sentencing defendant to twenty years of Level V incarceration instead of four years as the State agreed to recommend).
8 NOW, THEREFORE, IT IS ORDERED that the Motion to Affirm is
granted and the judgment of the Superior Court is AFFIRMED.
BY THE COURT: /s/ Leo E. Strine, Jr. Chief Justice