IN THE SUPERIOR COURT OF THE STATE OF DELAWARE
STATE OF DELAWARE ) ) v. ) I.D. No. 2402003067 ) MASHAWN LEWIS, ) ) Defendant. )
Submitted: May 22, 2025 Decided: May 29, 2025
Upon the State of Delaware’s Motion to Revoke Bail GRANTED.
MEMORANDUM OPINION AND ORDER
Stephen McCloskey, Esquire, Deputy Attorney General, DEPARTMENT OF JUSTICE, 820 North French Street, Wilmington, DE 19801, Attorney for the State of Delaware.
John S. Edinger, Esquire, Assistant Public Defender, OFFICE OF DEFENSE SERVICES, PUBLIC DEFENDER’S OFFICE, 820 North French Street, Wilmington, DE 19801, Attorney for Defendant Mashawn Lewis.
WHARTON, J. 1. INTRODUCTION
Defendant Mashawn Lewis (“Lewis”) was found guilty by a jury of a single
count of Possession of a Firearm by a Person Prohibited (“PFBPP”). The limited
issue before the Court is whether his bail should be revoked pursuant to 11 Del. C.
§ 2104(f)(1)(b).1 That section requires that bail be revoked for a defendant convicted
of a crime for which a minimum mandatory sentence must be imposed. 2 For Lewis,
his prior conviction of Carrying a Concealed Deadly Weapon - Firearm (“CCDW”)
would seemingly meet that requirement. 3 But, citing Erlinger v. United States,4
Lewis contends that prior conviction enhancement is a fact that must be proven to a
jury’s satisfaction beyond a reasonable doubt. Here the parties stipulated to Lewis’
status as a prohibited person. But for the fact that the Supreme Court left standing a
single exception to the rule that any fact that enhances a defendant’s minimum
sentence must be submitted to a jury, Lewis would be correct. However, that
exception, found in Almendarez-Torres v. United States,5 allows the Court to find
the fact of a prior conviction. Based on Lewis’ Indictment, Plea Agreement, in
which he pled guilty to CCDW- Firearm , the Truth-in-Sentencing Guilty Plea Form,
1 Lewis has been, and remains, in default of bail, giving the issue a bit of an academic flavor. 2 11 Del. C. § 2104(f)(1)(b). 3 See, 11 Del. C. §§ 1448(e)(1)(a) and (b) 4 602 U.S. 821 (2024). 5 523 U.S. 224 (1998). 2 and a certified copy of the Court’s Corrected Sentence Order, the Court finds that
Lewis has been convicted of that charge. Since that charge is a violent felony, he is
subject to a minimum mandatory sentence and his bail must be revoked pursuant to
11 Del. C. § 2104(f)(1)(b). The State’s Motion to Revoke Bail is GRANTED.
II. FACTUAL AND PROCEDURAL BACKGROUND
Lewis was indicted on three counts – PFBPP, Possession of Ammunition by
a Person Prohibited (“PABPP”) and Receiving a Stolen Firearm. At the pre-trial
conference on April 24, 2025, the Court was advised by the State that it would be
entering a nolle prosequi on the Receiving a Stolen Firearm charge. The Court was
advised that the parties anticipated entering into a stipulation regarding Lewis’ status
as a prohibited person. At trial, the parties did stipulate that Lewis was prohibited
by law from possessing a firearm and ammunition. At the end of the trial, the jury
found Lewis guilty of the PFBPP charge but not guilty of the PABPP charge. The
Court ordered a pre-sentence investigation.
After the verdicts were returned, the Court asked if there were any
applications. Neither party made any. Later, the State called chambers asking about
a bail revocation. The Court scheduled a teleconference for May 5th. At the
teleconference, the State asked that Lewis’ bail be revoked. Lewis opposed that
request. The Court ordered the parties to submit letter memoranda, the last of which
was filed on May 22nd.
III. THE PARTIES’ CONTENTIONS
3 At the pre-trial conference, when the Court asked if there were any Erlinger
issues, the State, relying on Jackson v. State,6 said there were none. Apparently
realizing that Jackson has no relevance, the State sought a firmer foundation for its
bail revocation motion. In its opening memorandum, the State distinguishes
Erlinger from Lewis’ situation.7 Erlinger involved the application of the federal
Armed Career Criminal Act (“ACCA”). ACCA provides:
In the case of a person who violates section 922(g) of this title and has tree previous convictions by any court referred to in section 922(g)(1) of this title for a violent felony or a serious drug offense, or both, committed on occasions different from one another, such person shall be fined under this title and imprisoned not less than 15 years, and notwithstanding any other provision of law, the court shall not suspend the sentence of, or grant a probationary sentence to such person with respect to the conviction under section 922(g).8
In Erlinger, the parties disputed whether Erlinger’s prior crimes had occurred “on
occasions different from one another.”9 Erlinger contended whether his prior crimes
occurred on distinct occasions or in a single criminal episode was a factual
determination to be made by a jury.10 The Supreme Court agreed, holding that
determination is a ‘“fact laden task”’ which must be undertaken by a jury.11
6 2025 WL 227682 (Del. Jan. 16, 2025). 7 State’s Op. Mem. at 2-3, D.I. 56. 8 18 U.S.C. § 924(e)(1). 9 State’s Op. Mem. at 2, D.I. 56. 10 Id. 11 Id. (quoting Erlinger, 602 U.S. at 834.) 4 Lewis’ case is different in the State’s view. The operative statute, 11 Del. C.
§ 1448(e)(1), Delaware’s analog to § 924(e)(1), requires only a single violent felony
conviction to enhance Lewis’ minimum mandatory sentence to at least three years
of Level V incarceration. 12 Almendarez-Torres permits a sentencing judge to find
the fact of a prior conviction. 13 Because Almendarez-Torres was not overruled by
Erlinger, and because § 1448(e)(1) does not require an “occasions” determination,
this Court may find Lewis was convicted of the violent felony of CCDW - Firearm
subjecting him to a minimum mandatory sentence. 14 Accordingly, his bail must be
revoked pursuant to § 2104(f)(1)(b). 15
In his memorandum, Lewis maintains that Erlinger requires that a jury make
the factual finding that Lewis had a prior conviction that triggered the enhanced
sentencing provision of § 1448(e)(1)(b).16 He acknowledges that a sentencing court
may make a determination of what crime, with what elements the defendant was
convicted of.17 But, he contends that is the limit of what a sentencing court can do.
Were the Court to go beyond finding the fact of conviction to finding that it occurred
within 10 years so as to impose a five year minimum mandatory sentence required
by § 1448(e)(1)b, such finding would contravene Erlinger.18
12 Id. at 3. 13 Id. at 4. 14 Id. 15 Id. 16 Def.’s Mem. at 3, D.I. 58. 17 Id. at 5. 18 Id. at 5-6. 5 The State replied on May 22, 2025 by letter dated May 21st.19 It points out
that for bail revocation purposes, the fact that Lewis had previously been convicted
of CCDW - Firearm, a violent felony, is sufficient to require enhanced punishment
of at least a three-year minimum mandatory sentence at Level V under §
1448(e)(1)a.20 Therefore bail must be revoked without regard to Lewis’ arguments
based on § 1448(e)(1)b which requires that the violent felony conviction be within
the previous 10 years. 21
IV. DISCUSSION
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IN THE SUPERIOR COURT OF THE STATE OF DELAWARE
STATE OF DELAWARE ) ) v. ) I.D. No. 2402003067 ) MASHAWN LEWIS, ) ) Defendant. )
Submitted: May 22, 2025 Decided: May 29, 2025
Upon the State of Delaware’s Motion to Revoke Bail GRANTED.
MEMORANDUM OPINION AND ORDER
Stephen McCloskey, Esquire, Deputy Attorney General, DEPARTMENT OF JUSTICE, 820 North French Street, Wilmington, DE 19801, Attorney for the State of Delaware.
John S. Edinger, Esquire, Assistant Public Defender, OFFICE OF DEFENSE SERVICES, PUBLIC DEFENDER’S OFFICE, 820 North French Street, Wilmington, DE 19801, Attorney for Defendant Mashawn Lewis.
WHARTON, J. 1. INTRODUCTION
Defendant Mashawn Lewis (“Lewis”) was found guilty by a jury of a single
count of Possession of a Firearm by a Person Prohibited (“PFBPP”). The limited
issue before the Court is whether his bail should be revoked pursuant to 11 Del. C.
§ 2104(f)(1)(b).1 That section requires that bail be revoked for a defendant convicted
of a crime for which a minimum mandatory sentence must be imposed. 2 For Lewis,
his prior conviction of Carrying a Concealed Deadly Weapon - Firearm (“CCDW”)
would seemingly meet that requirement. 3 But, citing Erlinger v. United States,4
Lewis contends that prior conviction enhancement is a fact that must be proven to a
jury’s satisfaction beyond a reasonable doubt. Here the parties stipulated to Lewis’
status as a prohibited person. But for the fact that the Supreme Court left standing a
single exception to the rule that any fact that enhances a defendant’s minimum
sentence must be submitted to a jury, Lewis would be correct. However, that
exception, found in Almendarez-Torres v. United States,5 allows the Court to find
the fact of a prior conviction. Based on Lewis’ Indictment, Plea Agreement, in
which he pled guilty to CCDW- Firearm , the Truth-in-Sentencing Guilty Plea Form,
1 Lewis has been, and remains, in default of bail, giving the issue a bit of an academic flavor. 2 11 Del. C. § 2104(f)(1)(b). 3 See, 11 Del. C. §§ 1448(e)(1)(a) and (b) 4 602 U.S. 821 (2024). 5 523 U.S. 224 (1998). 2 and a certified copy of the Court’s Corrected Sentence Order, the Court finds that
Lewis has been convicted of that charge. Since that charge is a violent felony, he is
subject to a minimum mandatory sentence and his bail must be revoked pursuant to
11 Del. C. § 2104(f)(1)(b). The State’s Motion to Revoke Bail is GRANTED.
II. FACTUAL AND PROCEDURAL BACKGROUND
Lewis was indicted on three counts – PFBPP, Possession of Ammunition by
a Person Prohibited (“PABPP”) and Receiving a Stolen Firearm. At the pre-trial
conference on April 24, 2025, the Court was advised by the State that it would be
entering a nolle prosequi on the Receiving a Stolen Firearm charge. The Court was
advised that the parties anticipated entering into a stipulation regarding Lewis’ status
as a prohibited person. At trial, the parties did stipulate that Lewis was prohibited
by law from possessing a firearm and ammunition. At the end of the trial, the jury
found Lewis guilty of the PFBPP charge but not guilty of the PABPP charge. The
Court ordered a pre-sentence investigation.
After the verdicts were returned, the Court asked if there were any
applications. Neither party made any. Later, the State called chambers asking about
a bail revocation. The Court scheduled a teleconference for May 5th. At the
teleconference, the State asked that Lewis’ bail be revoked. Lewis opposed that
request. The Court ordered the parties to submit letter memoranda, the last of which
was filed on May 22nd.
III. THE PARTIES’ CONTENTIONS
3 At the pre-trial conference, when the Court asked if there were any Erlinger
issues, the State, relying on Jackson v. State,6 said there were none. Apparently
realizing that Jackson has no relevance, the State sought a firmer foundation for its
bail revocation motion. In its opening memorandum, the State distinguishes
Erlinger from Lewis’ situation.7 Erlinger involved the application of the federal
Armed Career Criminal Act (“ACCA”). ACCA provides:
In the case of a person who violates section 922(g) of this title and has tree previous convictions by any court referred to in section 922(g)(1) of this title for a violent felony or a serious drug offense, or both, committed on occasions different from one another, such person shall be fined under this title and imprisoned not less than 15 years, and notwithstanding any other provision of law, the court shall not suspend the sentence of, or grant a probationary sentence to such person with respect to the conviction under section 922(g).8
In Erlinger, the parties disputed whether Erlinger’s prior crimes had occurred “on
occasions different from one another.”9 Erlinger contended whether his prior crimes
occurred on distinct occasions or in a single criminal episode was a factual
determination to be made by a jury.10 The Supreme Court agreed, holding that
determination is a ‘“fact laden task”’ which must be undertaken by a jury.11
6 2025 WL 227682 (Del. Jan. 16, 2025). 7 State’s Op. Mem. at 2-3, D.I. 56. 8 18 U.S.C. § 924(e)(1). 9 State’s Op. Mem. at 2, D.I. 56. 10 Id. 11 Id. (quoting Erlinger, 602 U.S. at 834.) 4 Lewis’ case is different in the State’s view. The operative statute, 11 Del. C.
§ 1448(e)(1), Delaware’s analog to § 924(e)(1), requires only a single violent felony
conviction to enhance Lewis’ minimum mandatory sentence to at least three years
of Level V incarceration. 12 Almendarez-Torres permits a sentencing judge to find
the fact of a prior conviction. 13 Because Almendarez-Torres was not overruled by
Erlinger, and because § 1448(e)(1) does not require an “occasions” determination,
this Court may find Lewis was convicted of the violent felony of CCDW - Firearm
subjecting him to a minimum mandatory sentence. 14 Accordingly, his bail must be
revoked pursuant to § 2104(f)(1)(b). 15
In his memorandum, Lewis maintains that Erlinger requires that a jury make
the factual finding that Lewis had a prior conviction that triggered the enhanced
sentencing provision of § 1448(e)(1)(b).16 He acknowledges that a sentencing court
may make a determination of what crime, with what elements the defendant was
convicted of.17 But, he contends that is the limit of what a sentencing court can do.
Were the Court to go beyond finding the fact of conviction to finding that it occurred
within 10 years so as to impose a five year minimum mandatory sentence required
by § 1448(e)(1)b, such finding would contravene Erlinger.18
12 Id. at 3. 13 Id. at 4. 14 Id. 15 Id. 16 Def.’s Mem. at 3, D.I. 58. 17 Id. at 5. 18 Id. at 5-6. 5 The State replied on May 22, 2025 by letter dated May 21st.19 It points out
that for bail revocation purposes, the fact that Lewis had previously been convicted
of CCDW - Firearm, a violent felony, is sufficient to require enhanced punishment
of at least a three-year minimum mandatory sentence at Level V under §
1448(e)(1)a.20 Therefore bail must be revoked without regard to Lewis’ arguments
based on § 1448(e)(1)b which requires that the violent felony conviction be within
the previous 10 years. 21
IV. DISCUSSION
Typically, when a defendant is charged with PFBPP and/or PABPP and other
crimes, there is a severance. The other crimes are tried as the “A” case and the
PFBPP and/or PABPP charge is the “B” case. In this way, a defendant will not be
prejudiced in the “A” case by the jury’s knowledge that he had been convicted of
another crime that caused him to be prohibited from possessing a firearm or
ammunition. Frequently, after the jury returns a verdict in the “A” case, a defendant
elects to waive a jury trial and allow the trial judge to decide the “B” case. Here, in
effect, the “B” case became the “A” case when the State decided not to pursue the
Receiving a Stolen Firearm charge, leaving only the PFBPP and PABPP charges.
The parties stipulated before the jury that Lewis was prohibited by law from
possessing a firearm and ammunition. Whether the State needed to enter into the
19 State’s Reply, D.I. 59. 20 Id. at 3. 21 Id. at 3-4. 6 stipulation when there was no “B” case is not before the Court. 22 Regardless, the
State never proposed how the issue of the date of Lewis’ CCDW - Firearm
conviction was to be resolved.
The parties do not appear to be in disagreement about the law, at least insofar
as to whether the Court can determine the fact of Lewis’ prior conviction. That fact
can be found consistently with Erlinger and Erlinger’s determination to leave
Almendarez-Torres in place, at least for the time being. 23 Therefore, the Court finds
that Lewis was previously convicted of CCDW – Firearm based on Lewis’
Indictment in Case No. 2202001461, his Plea Agreement and Truth-in Sentencing
Guilty Plea Form, and the certified copy of his Corrected Sentence Order all in that
case.24 The Court also finds that CCDW – Firearm is a violent felony as a matter of
law pursuant to 11 Del. C. § 4201(c)(1). Accordingly, the requirements of §
1448(e)(1) have been met because Lewis will be subject to a minimum mandatory
sentence. Lewis’ bail is revoked pursuant to 11 Del. C. § 2104(f)(1)(b).
That determination does not answer the question of how long that minimum
mandatory sentence must be. That question is not before the Court now. If the State
intends to seek sentencing under § 1448(e)(1)b because Lewis’ CCDW – Firearm
conviction occurred within 10 years of this conviction, it must notify the Court of
22 See, Monceaux v. State, 51 A.3d 474, 478-79 (Del. 2012). 23 Erlinger, 602 U.S. at 837-38. 24 State’s Reply at Exs. A, B, and C, respectively, D.I. 59. 7 that intention no later than 20 days after the date of this Memorandum Opinion and
Order.
VI. CONCLUSION
For the reasons set forth above, the State’s Motion to Revoke Bail is
GRANTED. Defendant Mashawn Lewis’ bail is REVOKED immediately.
If the State intends to seek to have Defendnant Mashawn Lewis sentenced
pursuant to 11 Del. C. § 1448(e)(1)b it shall notify the Court of such intention no
later than 20 days after the date of this Memorandum Opinion and Order.
IT IS SO ORDERED.
/s/ Ferris W. Wharton Ferris W. Wharton, J.