Opinion
I.D. No. 9406017814, Cr. A. No. IN94-07-0221R1, Cr. No. IN94-07-0222R1.
Submitted: August 27, 2003.
Decided: November 26, 2003.
UPON DEFENDANT'S MOTION FOR POSTCONVICTION RELIEF GRANTED IN PART; DENIED IN PART.
Bernard J. O'Donnell, Esquire, Office of Public Defender, New Castle County, State of Delaware, Attorney for Defendant.
Paul R. Wallace, Esquire, Deputy Attorney General, New Castle County, State of Delaware, Attorney for the State of Delaware.
ORDER
Alvin M. McKamey ("Defendant") has filed this Motion for Postconviction Relief pursuant to Superior Court Criminal Procedure Rule 61, wherein he seeks to set aside a judgment of criminal conviction of Robbery First Degree under 11 Del. C. § 832. Defendant predicates his claim for relief on the Delaware Supreme Court's decision in Walton v. State, which overruled the Court's holding, in part, in Defendant's prior direct appeal. Other than asserting that his Robbery First Degree conviction should be reduced to Robbery Second Degree based on the findings in Walton, Defendant does not set forth with particularity which, if any, of the Rule 61 provisions he is invoking for the Court to consider his motion.
Walton v. State, 821 A.2d 871 (Del. 2003).
McKamey v. State, 1997 WL 45060 (Del.).
In his reply brief, Defendant additionally contends that the correlating habitual offender designation, imposed by this Court pursuant to 11 Del. C. § 4214(b), no longer applies to his January 16, 1996 sentencing. Specifically, Defendant was sentenced to life imprisonment without probation or parole as a consequence of the Robbery First Degree conviction from a June 11, 1994 offense, IN94-07-0222. Contemporaneously, instead of receiving a second sentence of life imprisonment, he was only sentenced to twenty years incarceration on the Robbery First Degree conviction from a June 24, 1994 offense, IN94-07-0221. Accordingly, he asserts that, upon the Court resentencing him by reducing the judgment of Robbery First Degree to Robbery Second Degree in connection with IN94-07-0222, his habitual offender status must be vacated because he would no longer qualify under the statutory requirements of 11 Del. C. § 4214(b) as an habitual offender.
Further, Defendant requests that the Court deny the State's recommendation to amend its previous sentencing order which inadvertently neglected to grant habitual offender status to Defendant's Robbery First Degree conviction, IN94-07-0221, having granted it solely with respect to Defendant's Robbery First Degree conviction, IN94-07-0222. Notwithstanding the fact that the State had originally sought habitual offender status, i.e., life imprisonment without probation or parole, in connection withboth convictions at Defendant's January 16, 1996 sentencing, and the fact that this Court inexplicably did not fully grant the State's request, Defendant asserts that to do so now would infringe on the Defendant's legitimate expectation of finality in his sentence and violate the constitutional prohibition against double jeopardy.
For the reasons stated below, Defendant's Motion is GRANTED IN PART with respect to the reduction of his sentence from Robbery First Degree to Robbery Second Degree on count IN94-07-0222 of the indictment. Defendant's Motion is DENIED IN PART, with respect to Defendant's request that the Court not correct its error in failing to grant the State's prior request to impose on the Defendant habitual offender status of life imprisonment without probation or parole, as mandated by 11 Del. C. § 4214(b), upon the prior specific petition made by the State in connection with count IN94-07-0221 of the indictment for the criminal conviction of Robbery First Degree.
Statement of Facts
On July 25, 1994, Defendant was indicted by a New Castle County Grand Jury and charged with one count of Robbery First Degree, in violation of Title 11 Del. C. § 832 of the Delaware Code, and one count of Possession of a Deadly Weapon During the Commission of a Felony, in violation of Title 11 Del. C. § 1447 of the Delaware Code, for robbing a cab driver of ninety dollars on June 11, 1994. (Criminal Actions Nos. IN94-07-0222 and IN94-07-0223, respectively). He was also charged with one count of Robbery First Degree, in violation of Title 11 Del. C. § 832 of the Delaware Code, and one count of Possession of a Deadly Weapon By a Person Prohibited, in violation of Title 11 Del. C. § 1448 of the Delaware Code, for robbing a tavern of several hundred dollars on June 24, 1994. (Criminal Actions Nos. IN94-07-0221 and IN94-07-0767, respectively).
On October 31, 1995, following a two-day jury trial, the Defendant was found guilty of both counts of Robbery First Degree, but was acquitted on the two weapons charges. Prior to these convictions, Defendant had been convicted of Burglary Second Degree on September 27, 1989 and of Possession With Intent to Deliver Cocaine on June 1, 1993. Pursuant to 11 Del. C. § 4214(b), the State moved the Court to declare the Defendant to be an habitual offender and to impose the sentencing provisions of 11 Del. C. § 4214(b) as to both Robbery First Degree convictions.
Despite the State's request to impose habitual offender status on the Defendant with respect to both Robbery First Degree charges on January 16, 1996, the Court only sentenced the Defendant in connection with Criminal Action No. IN94-07-0222, Robbery First Degree, to be incarcerated at Level V for life without possibility of probation or parole. In connection with Criminal Action No. IN94-07-0221, Robbery First Degree, however, he was sentenced to be incarcerated at Level V for twenty years. Upon examination of the record and of the sentencing transcripts, there is no indication or explanation why the Court did not fully adopt the State's request and sentence the Defendant to habitual offender status in connection with the second Robbery First Degree conviction, IN94-07-0221.
Additionally, in connection with VN89-09-9203, Violation of Probation of his underlying Burglary Second Degree charge, the Court sentenced Defendant to be incarcerated at Level V for three and one half years. In connection with VN89-07-1054, Violation of Probation of his underlying Burglary Third Degree charge, the Court sentenced Defendant to be incarcerated at Level V for two years. Finally, in connection with VN92-08-0443, Violation of Probation of his underlying Possession With Intent to Deliver charge, the Court imposed a term of incarceration at Level V for two years.
Defendant timely filed a direct appeal of his conviction to the Delaware Supreme Court. In his appeal, Defendant raised two issues. First, he contended that his conviction for one count of Robbery First Degree, IN-94-07-0222, was inconsistent with his acquittal of the weapons possession charges. Defendant had argued that since the jury acquitted him of possessing a knife, a priori, it could not have found that he displayed what appeared to be a deadly weapon during the robbery. But, the State never contended that Defendant displayed a knife during the course of the robbery. Rather, the State demonstrated that he "displayed" a gun while robbing the cab driver by illustrating that he sat behind the driver in the moving cab and told the driver that he had a gun. On January 23, 1997, the Supreme Court upheld the jury's verdict of not guilty as to possession of a knife during the commission of the robbery, but guilty nonetheless of robbery in the first degree, because there was sufficient evidence for a jury reasonably to have found that the Defendant did display what appeared to be a deadly weapon, i.e., a gun, during the cab robbery.
The first robbery incident occurred on June 11, 1994, when Defendant entered a cab and ordered the cab driver to pull over, telling him that he possessed a gun. When the driver refused to pull over, the two men wrestled. After a brief struggle, Defendant eventually opened the passenger door and jumped out of the cab taking ninety dollars of the driver's money. When the police arrived, the driver noticed a steak knife lying on the seat of his cab. It was the first time the driver had ever seen the knife. McKamey, 1997 WL 45060, at *1.
Id. at *2.
Under the then-existent statute, the words "displays" and "appears" as used in 11 Del. C. § 832 did not require that the assailant in fact be armed, nor did they require proof that a deadly weapon was in fact used. In conjunction with the decision by the Delaware Supreme Court in State v. Smallwood, 346 A.2d 164 (Del. 1975), the terms "displays" and "appears" were construed with a view toward the victim's reaction, and such terms encompassed not only the robber who actually physically displayed a weapon to the victim, but also the robber who intimidated by otherwise manifesting the presence of such a weapon, even though it has not been seen by the victim. Id. at *2.
McKamey, 1997 WL 45060, at *3.
Defendant's second contention on appeal dealt with his conviction on the other count of Robbery First Degree, IN-94-07-0221. As to this second count, Defendant did not similarly argue that the jury's findings, that he displayed what appeared to be a deadly weapon during the robbery of the tavern, were unsubstantiated because he had been acquitted on the associated weapons charge. Instead, he argued that the State's evidence was insufficient to demonstrate that he used or threatened the immediate use of force upon the victim during the tavern robbery, as required to sustain a first degree robbery conviction pursuant to 11 Del. C. § 831 and 832. He contended that the threat of force was directed against the manager, not against the bartender, in that Defendant was speaking to the manager when he directed her to give him the money and told her that he had a gun. But, the bartender and the customer both testified the Defendant made these statements in the presence of all three individuals. The bartender further testified that, believing that Defendant possessed a gun, she became scared and opened the cash register for him. The Delaware Supreme Court upheld the jury's verdict of robbery in the first degree, finding that there was sufficient evidence to establish the elements of first degree robbery.
The second robbery occurred on June 24, 1994, when immediately before closing, Defendant entered Bernie's Tavern located in Wilmington. There were three people present: a manager, a bartender, and a customer. Upon entering, Defendant told those present that it was a hold-up and that he wanted money. When the people were slow to react, he told them that he had a gun in his back pocket. He instructed the bartender to give him the money from the cash register. The bartender testified that she was scared and that she believed Defendant might have had a gun. Keeping one hand in his pocket, Defendant took several hundred dollars from the cash register and left the tavern. Id. at *1.
Id.
On May 22, 2003, Defendant filed the instant motion for postconviction relief pursuant to Superior Court Criminal Rule 61 based on the recent Delaware Supreme Court decision in Walton. In Walton, the Court overruled its prior holding in Defendant's direct appeal because the evidence of his actions in the robbery conviction for IN94-07-0222 was no longer sufficient under Delaware law to support a conviction for Robbery First Degree. Because Defendant has demonstrated that reconsideration of his formerly adjudicated claim (his direct appeal as to IN94-07-0222) is warranted in the "interests of justice," the motion is granted, in part, on procedural and substantive grounds. Second, although not directly raised in his Rule 61 motion, the Court holds that imposition of habitual offender status to Defendant's other First Degree Robbery conviction, IN94-07-0221, albeit seven years after his initial sentencing, does not violate Defendant's state and federal double jeopardy constitutional rights.
Walton, 821 A.2d at 875 n. 14.
Super. Ct. Crim. R. 61(i)(4).
Rule 61 Procedural Bars
Under Delaware law, when considering a motion for postconviction relief, this Court must first determine whether the defendant has met the procedural requirements of Superior Court Criminal Rule 61(i) before it may consider the merits of defendant's postconviction relief claim. To protect the integrity of the procedural rules, the Court should not consider the merits of a postconviction claim where a procedural bar exists.
Bailey v. State, 588 A.2d 1121, 1127 (Del.Super.Ct. 1991); Younger v. State, 580 A.2d 552, 554 (Del. 1990) (citing Harris v. Reed, 489 U.S. 255, 265 (1989)).
State v. Gattis, 1995 WL 790961, at *2 (citing Younger, 580 A.2d at 554).
In his motion for relief, Defendant does not elaborate which, if any, of the procedural safeguards of Rule 61 he employs as a foundation for relief. Instead, he simply validates his request for relief by making the conclusory assertion based on the findings in Walton. That being said, upon initial examination of the procedural bars imposed by Rule 61(i), the Court finds that Defendant has overcome the first hurdle for postconviction relief, i.e., the time limitation bar to relief set forth in Rule 61(i)(1).
Pursuant to Rule 61(i)(1), a postconviction motion that is filed more than three years after judgment of conviction is untimely, and thus procedurally barred. Even though Defendant filed the instant motion approximately six and one half years after his conviction became final on January 23, 1997, he asserts a new retroactive right based on the Delaware Supreme Court's holding in Walton. Thus, his motion is not procedurally barred under Rule 61(i)(1). In addition, this is Defendant's initial motion for postconviction relief seeking relief from this judgment. Therefore, the bar of Rule 61(i)(2), which precludes consideration of any claim not previously asserted in a postconviction motion, does not apply either.
Super. Ct. Crim. R. 61(i)(1) more fully provides:
A motion for postconviction relief may not be filed more than three years after the judgment of conviction is final or, if it asserts a retroactively applicable right that is newly recognized after the judgment of conviction is final, more than three years after the right is first recognized by the Supreme Court of Delaware or by the United States Supreme Court.
Within the purview of Rule 61(i)(1), a conviction becomes final for purposes of postconviction review:
(a) for a defendant who takes a direct appeal of the conviction, when the direct appeal process is complete (the date of the issuance of the mandate under Supreme Court Rule 19); or
(b) for a defendant who does not take a direct appeal, when the time for direct appeal has expired (30 days after sentencing); or
(c) if the United States Supreme Court grants certiorari to a defendant from a decision of this Court, when that Court's mandate issues. Jackson v. State, 654 A.2d 829, 833 (Del. 1995).
See supra note 10.
Super. Ct. Crim. R. 61(i)(2).
Rule 61(i)(3) contains another bar, by providing that "any ground for relief that was not asserted in the proceedings leading to the judgment of conviction . . . is thereafter barred, unless the movant shows (A) [c]ause for relief from the procedural default, and (B) [p]rejudice from violation of the movant's rights." Because of the unique circumstances of this case, in that the Delaware Supreme Court recently reversed its holding, in part, in Defendant's direct appeal — six years after affirming the convictions, Defendant's claims could not have been raised at the plea, sentencing, or on direct appeal. Therefore, the bar of Rule 61(i)(3) is inapplicable.
Super. Ct. Crim. R. 61(i)(3).
Rule 61(i)(4) provides that "[a]ny ground for relief that was formerly adjudicated, whether in the proceedings leading to the judgment of conviction, in an appeal, in a postconviction proceeding, or in a federal habeas corpus proceeding, is thereafter barred unless consideration of the claim is warranted in the interest of justice." The "interest of justice" exception of Rule 61(i)(4) has "been narrowly defined to require the movant to show that the trial Court lacked the authority to convict or punish [the movant]." Invoking the "interest of justice" provision of Rule 61(i)(4) to obtain relitigation of a previously resolved claim, the movant must show that subsequent legal developments have revealed that the trial court lacked the aforementioned authority to convict or punish.
Super. Ct. Crim. R. 61(i)(4).
State v. Wright, 653 A.2d 288, 298 (Del.Super.Ct. 1994) (citing Flamer v. State, 585 A.2d 736, 746 (Del. 1990)).
Flamer v. State, 585 A.2d 736, 746 (Del. 1990) (citing comparatively Davis v. United States, 417 U.S. 333, 342 (1974)).
In comparison, Rule 61(i)(5) "[i]s a general default provision, and permits a petitioner to seek relief if he or she was otherwise procedurally barred under Rules 61(i)(1)-(3)." The "miscarriage of justice" or "fundamental fairness" exception contained in Rule 61(i)(5) is "[a] narrow one and has been applied only in limited circumstances, such as when the right relied upon has been recognized for the first time after a direct appeal." This exception may also apply to a claim that there has been a mistaken waiver of fundamental constitutional rights, such as a mistaken waiver of rights to trial, counsel, confrontation, the opportunity to present evidence, protection from self-incrimination and appeal. Accordingly, when a petitioner puts forth a colorable claim of mistaken waiver of important constitutional rights, Rule 61(i)(5) is available to him.
Bailey, 588 A.2d at 1129.
Rule 61(i)(5) provides:
The bars to relief in paragraphs (1), (2), and (3) of this subdivision shall not apply to a claim that the court lacked jurisdiction or to a colorable claim that there was a miscarriage of justice because of a constitutional violation that undermined the fundamental legality, reliability, integrity or fairness of the proceedings leading to the judgment of conviction.
Younger, 580 A.2d at 555 (citing Teague v. Lane, 489 U.S. 288, 297-99 (1989)) (emphasis added).
Webster v. State, 604 A.2d 1364, 1366 (Del. 1992).
Id. (citing comparatively Younger v. State, 580 A.2d 552, 555 (Del. 1990) (fundamental fairness exception of Rule 61(i)(5) applies where petitioner shows he was deprived of a substantial constitutional right).
The Delaware Supreme Court has noted that the "interest of justice" exception of Rule 61(i)(4) and the "miscarriage of justice" exception of Rule 61(i)(5) have distinct denotations under the Rule. In Bailey v. State, the Delaware Supreme Court emphasized the importance of the difference between these exceptions, holding that, "[w]e underscore that the terms `interest of justice' and `miscarriage of justice' have different and distinct meanings under Rule 61. The trial court committed error if it treated the two conterminously." Further, "[w]hile Rule 61(i)(4) allows for consideration of certain issues which have been previously litigated `in the interest of justice,' Rule 61(i)(5) provides for postconviction consideration of issues which have not been previously litigated and may entail a `miscarriage of justice.'" Accordingly, each subsection of the statute employs different criteria for both consideration and relief of postconviction claims.
Bailey, 588 A.2d at 1127 n. 6.
State v. Rosa, 1992 WL 302295, at *7 (Del.Super.Ct.).
Id.
The ground for relief (the conviction for Robbery First Degree, IN94-07-0222, should be reversed due to insufficiency of evidence under the Delaware Supreme Court's construction of 11 Del. C. § 832 in Walton) embodied in Defendant's postconviction motion was formerly adjudicated in an appeal. Also, in essence, the Defendant is arguing that, because the present holding in Walton directly overrules the holding in his direct appeal, this subsequent legal development has revealed that the trial court lacks the aforementioned authority to continue to punish him for Robbery First Degree as to IN94-07-0222. Thus, based on the differing policy interests which underlie Rules 61(i)(4) and (i)(5), the Court finds that consideration of Defendant's claim is more appropriate examined under the "interest of justice" exception of Rule 61(i)(4). Indeed, the State forthrightly concedes that application of that exception is appropriate in the unusual circumstances of this case.
Legal Analysis
A. Insufficiency of Evidence as to Robbery First Degree, IN94-07-0222
Turning to the substantive claims of his motion, Defendant relies on the Delaware Supreme Court's decision in Walton, which overturned, in part, the Court's earlier affirmation of his direct appeal, as grounds for reducing his Robbery First Degree conviction, IN94-07-022, to Robbery Second Degree.
In Walton, the Court reversed twenty-five years of legal precedent by redefining the "displays what appears to be a deadly weapon" requirement encompassed in 11 Del. C. § 832(a)(2). Prior to Walton, Delaware courts had attributed the word "displays" under the statute to denote not only the notion of spreading before view or exhibiting to the sight, but also to represent that which is manifested to any of a victim's senses. A weapon was "displayed" to a victim, for purposes of the statute, if the weapon was exhibited to the victim's mind through any of the victim's senses. The "displays" requirement could be predicated only on the victim's belief that a defendant possessed a deadly weapon, and some objective manifestation of a weapon, even if the weapon was unseen. In almost every case, the objective manifestation was in the form of a defendant alleging to have a weapon while concealing his or her hand under a piece of clothing.
§ 832 provides, in part:
(a) A person is guilty of robbery in the first degree when the person commits the crime of robbery in the second degree and when, in the course of the commission of the crime or of immediate flight therefrom, the person or another participant in the crime: . . . (2) Displays what appears to be a deadly weapon[.] DEL. CODE ANN. tit. 11 Del. C. § 832(a)(2) (2001 Supp. 2002).
State v. Smallwood, 346 A.2d 164, 166 (Del. 1975).
Smallwood, 346 A.2d at 165.
Id. at 166 (holding that one who is made to feel by the sense of touch the presence of an apparent gun may never see it but there is recognition, and the manifestation is just as effective, for the purpose of this section, as putting a gun in plain view); accord Lawrence v. State, 790 A.2d 476 (Del. 2002) (holding that "displays" includes a defendant's act of wrapping cloth around his hand so that it appears to hide a gun, where the victim reasonably apprehended that the defendant was armed); Deshields v. State, 544 A.2d 265 (Del. 1988) (defendant reached into his coat pocket as if he was reaching for a gun while threatening the victims); Mercado v. State, 515 A.2d 398 (Del. 1986) (defendant tapped a bulge in his waistline, which victim perceived to be a handgun, and made a verbal threat); Williams v. State, 494 A.2d 1237 (Del. 1985) (defendant had his hands clasped together pointed at the victim admonishing with a verbal threat); Harrigan v. State, 447 A.2d 1191 (Del. 1982) (defendant had one hand inside a coat and made a verbal threat to shoot one of the victims).
In her dissent, Justice Berger took exception to the majority's abandonment of the basic tenets inherent in the Court's then-extant interpretation of "displays what appears to be a deadly weapon," as first defined in Smallwood some twenty-five years earlier. In support of her dissenting position, Justice Berger emphasized a litany of case law evidencing the Court's reliance over the years on the settled principles announced in Smallwood, i.e., the word "display" means to "exhibit to the sight or mind" and the "display" requirement is satisfied if the weapon is "manifested to any of a victim's senses," even if the manifestation was not obvious to the observer or consisted of a verbal threat. See supra note 33.
The first winds of change in the Court's reasoning occurred, quite unexpectedly, a year before Walton was decided. The Delaware Supreme Court held in Word v. State that a bank teller's testimony that she thought defendant had a weapon, because his note stated "I am armed," did not establish that defendant had displayed what appeared to be a deadly weapon, and was thus unaccompanied by a physical manifestation of a weapon, a required element of first-degree robbery.
Word v. State, 801 A.2d 927 (Del. 2002).
The following year, in Walton, the defendant entered a bank and handed the bank teller a note that read, "I have a bomb. Give me all your money and no dye pack." The bank teller later testified that she did not see anything that appeared to be a weapon on the robber's person and that he did have his hand in his pocket, which scared her. But there was no evidence that the hand in the pocket "appeared to be a deadly weapon."
Walton, 821 A.2d at 873-74.
The Walton Court adopted a two-part analysis to examine the "displays" requirement in § 832(a)(2), focusing on its determinative value as one of the elements elevating a crime of Robbery Second Degree to Robbery First Degree. First, the victim must subjectively believe the defendant has a weapon. Second, the defendant's threat must be accompanied by an objective manifestation of a weapon. Relying on its decision in Word, the Court held that Walton's conduct could not be construed as "displays" because the Court, since Smallwood, had always accorded the word "display" its plain meaning in interpreting § 832(a)(2), i.e., "to spread before view," "exhibit to the sight or mind," "give evidence of." Secondly, the Court opined that Walton's hand in the pocket "[c]annot lead to a permissible inference of an `appearance' of a deadly weapon. The solitary reference to Walton's hand in the pocket is not an objective physical manifestation that Walton displayed what appeared to be a bomb." Reaffirming its opinion that "display" is "[t]he conduct establishing the additional, aggravating element that elevates second degree robbery to the more serious, first degree offense," the Court concluded by recognizing that, "[a] verbal threat cannot, itself, be a `display' of what `appears to be a deadly weapon.'" If that were the case, the Court rationalized, then the sensitivity of each particular victim to a verbal threat would be the determining factor in whether the offense was elevated from second degree to first degree.
Id. at 874 (citing Smallwood, 346 A.2d at 166, for the proposition that this requirement is consistent with an essential element of the offense).
Id. at 874 (citing DeShields, 706 A.2d at 507).
Id. at 876.
Id. at 875-76.
Id. at 877.
Id.
In upholding Walton's contention that having his hand in his pocket, without any elaboration, cannot constitute an objective physical manifestation sufficient to support the requirement of an "objective physical manifestation" that he displayed what appeared to be a deadly weapon, the Court concurrently overruled Defendant's First Degree Robbery conviction, IN94-07-0222, to the extent it was inconsistent with Walton and Word. In accordance with the Delaware Supreme Court's decision in Walton, a resentencing hearing shall be held in connection with the Robbery First Degree charge of the indictment, IN94-07-0222, at which time a new verdict will be entered on the record and the conviction for this charge will be reduced from Robbery First Degree to Robbery Second Degree pursuant to 11 Del. C. § 831.
"In Word we referred, among other cases, to a summary order of a panel of this Court in McKamey v. State, 1997 WL 45060 (Del.Supr.). See Word, 801 A.2d at 931. In McKamey, we upheld a first degree robbery conviction upon evidence showing only that the defendant robbed a cab driver where the defendant "sat behind the driver in a moving cab and told the driver that he had a gun." Id. (quoting McKamey, 1997 WL 45060 at *2). We said in Word that we did not "read our summary order in McKamey that was entered before our DeShields opinion as reliable precedent to permit a finding of `displays what appears to be a deadly weapon' where the victim did not perceive any display or physical manifestation of a weapon." Id. We now conclude that the facts of McKamey cannot be substantially distinguished from the facts in Word or from the facts of the case before us. Therefore, in this en Banc case, we now overrule McKamey to the extent that it is inconsistent with the instant holding or the holding in Word." Id. at 875 n. 14.
In response to Word, Walton, and McKamey, § 832(a)(2) was amended shortly thereafter on June 30, 2003. In April 2003, the Delaware General Assembly introduced House Bill No. 115, amending § 832(a)(2) by striking the phrase "deadly weapon" and inserting the phrase "deadly weapon or represents by word or conduct that he or she is in possession or control of a deadly weapon." H.B. 115, § 1, 142nd Gen. Assem. (Del. 2003). The General Assembly explained that the amendment "clarifies that any person who represents by word or conduct that they are in possession or control of a deadly weapon is committing a more serious crime than if there were no such representations." Further, the General Assembly explained that the act would "clarify that it is the General Assembly's intent to ensure that the Robbery First Degree status will apply whenever a criminal intends to intimidate a robbery victim by threatening the presence of a deadly weapon, regardless of whether the intimidation is accomplished by a physical display of what appears to be a deadly weapon or a verbal threat or other conduct that clearly implies that the criminal is so armed." H.B. 115, 142nd Gen. Assem. (Del. 2003), Synopsis.
Note, as referenced previously, the Defendant raised a separate sufficiency of evidence claim on direct appeal as to the Robbery First Degree charge, IN94-07-0221, of which he was convicted. See McKamey v. State, 1997 WL 45060 (Del.). This conviction was affirmed on direct appeal and is unaffected by the Walton decision, infra.
B. Imposition of Habitual Offender Status as to IN94-07-0221 and Double Jeopardy Implications
At the time of resentencing, the State requests that the Court correct the error that occurred at the initial habitual criminal offender proceeding and sentencing with respect to IN94-07-0221. After Defendant's conviction for the two robbery counts, IN94-07-0221 and IN94-07-0222, the State properly and timely moved for application of his habitual criminal status under 11 Del. C. § 4214(b)(1994) for each conviction. For some reason, not evident in any part of the record, habitual criminal status was applied only to IN94-07-0222, and not to IN94-07-0221. The State contends that because it had initiated the habitual offender process in Defendant's case by seeking habitual offender status for each count, the Court was required to apply the status to each count. By properly applying the habitual offender status to the conviction for the Robbery First Degree charge of the indictment, IN94-07-0221, the initial sentence imposed on this conviction would be enhanced from twenty years at Level V to life imprisonment.
As stated previously, instead of imposing criminal habitual offender status with respect to IN94-07-0221 as requested by the State, the Court imposed a sentence of twenty years incarceration at Level V. Once the conviction under IN94-07-0222 is reduced to Robbery Second Degree, Defendant no longer falls under the rubric of 11 Del. C. § 4214(b)(1994). Robbery Second Degree is not included as one of the listed offenses under 11 Del. C. § 4214(b)(1994). As Defendant's conviction under IN94-07-0222 is now Robbery Second Degree, and he does not have the proper number and sequence of convictions to make him liable for habitual criminal sentencing under 11 Del. C. § 4214(a)(1994), he faces a sentence of only up to five years for IN94-07-0222. See 11 Del. C. § 831 4205(b)(5)(1994).
See generally Kirby v. State, 1998 WL 184492 (Del.); Hawkins v. State, 2002 WL 384436 (Del.).
The Defendant disagrees, arguing that once the State had moved for habitual offender status, the motion became a basis for a finding of habitual offender status, and this Court may not apply habitual offender status to any greater number of counts than those advanced by the State. Defendant claims that, in the State's original Motion to Declare Alvin M. McKamey an Habitual Offender, the State did not request that he be "sentenced to life imprisonment as a habitual offender for each robbery offense." Rather, Defendant purports, the State only requested that the Court have the Defendant "declared to be an habitual offender and to impose the sentencing provisions of 11 Del. C. § 4214(b)." Further, Defendant points out, the State did not move in 1996 to have the Court correct the sentence, nor did the State seek to appeal the sentence in 1996. In consideration of these circumstances, Defendant asserts that he had a legitimate expectation of finality in the sentence. In seeking to increase his sentence by correcting its error, he asserts that the State is thereby violating his right to be free from the specter of double jeopardy.
Kirby v. State, 1998 WL 184492 (Del.).
Upon examination of the record, the Court has determined that, notwithstanding the Court's inadvertent omission in not sentencing the Defendant pursuant to 11 Del. C. § 4214(b) as to IN94-07-0221, all relevant factors in this case overwhelmingly indicate the State's unremitting intent to seek habitual offender status on both convictions from the time the Defendant was found guilty of both Robbery First Degree charges. The two most decisive factors from the record are the sentencing hearing transcript and the State's original Motion to Declare Alvin M. McKamey an Habitual Offender.
From the commencement of the sentencing hearing held on January 19, 1996, the State acknowledged its intent to move to have the Defendant declared an habitual offender under 11 Del. C. § 4214 (b). At times, during the course of the hearing, references were interchangeably made by defense counsel, and by the Court as well, to the Defendant's two Robbery First Degree convictions, both in the plural and in the singular. It is the Court's contention that this practice, coupled with the fact that both convictions were identical in nature, superimposed on the proceedings something more than a simplistic linguistics problem, i.e., that on those instances when referring to one conviction, the speaker, in fact, objectively meant both convictions. A common semantical lapse, this interchangeable usage may have precipitated some miscommunication or miscomprehension during the sentencing hearing to the degree that the Court inadvertently, and unavoidably, granted habitual offender status to only one of the Robbery First Degree charges, when, indeed, its intent was to grant it to both charges.
Excerpts from the Sentencing Hearing Transcript:
STATE: Your Honor, prior to sentencing the State wishes to move to have Alvin McKamey declared a [sic] habitual under § 11 Del. C. § 4214(b) of Title 11.THE COURT: All right.
STATE: Your Honor, I'm handing up for the Court, certified copies of the dockets from the predicate felonies underlying that motion. This docket entry shows, Your Honor, there is no overlap in the convictions here. Mr. McKamey has a conviction for Burglary Second Degree, September 27, 1989, he was sentenced on November 20, 1989.
His next conviction, for purposes of this motion, was conviction for Possession with Intent to Deliver Cocaine on June 1, 1993, he was sentenced that same date.
And the present offense, two counts of Robbery First Degree, the conviction being, as Your Honor knows, was October 31, 1995. I would also ask, Your Honor, that the Court take judicial notice of the information in the court file, including the presentence reports that indicates the pedigree information to Mr. McKamey. He indicates he is the same individual in each case. On the basis of that position, the State moves to have the defendant declared a [sic] habitual criminal. . . .
THE COURT: I have reviewed the State's motion to declare you as a habitual offender, and with one minor technical error, where the motion gives the offense date of Burglary Second Degree as May 26, 1989, was actually July 17, 1989, I find the motion to be entirely in order.
There was a sequence of one of the predicate felonies where there was a sentencing after which you committed another predicate felony. On all prior occasions you were represented by an attorney, so the Court is satisfied, based upon the presentence investigation and certified records in connection with prior offenses, that you are eligible as a habitual offender under 4214(b). . . .
THE COURT: Alvin Maurice McKamey in connection with IN 94-07-0222, Robbery First Degree, effective 9/20/94, it is the sentence of the Court you are to pay the costs of prosecution, they are suspended. You are incarcerated for life at Level 5 incarceration. This is a sentence imposed pursuant to Title 11 Del. C. § 4214(b).
In connection with IN94-07-0221, Robbery First Degree, you are to pay the costs of prosecution, they are suspended. You are to be incarcerated for 20 years at Level 5.
Sentencing Hearing Transcript, dated January 19, 1996, at 2-3, 8-9 (hereinafter, "Sentencing Hr'g Tr. at ___") (emphasis added).
DEFENSE COUNSEL: [H]e was charged with Robbery First Degree and with a Possession of Deadly Weapon during commission of those, he was found guilty of the two counts of Robbery First Degree, but found him not guilty of possessing weapons. To a certain degree this is a conflict. On the other hand, there was a conviction for Robbery First Degree. . . . Given his background, I would ask that he get the minimum mandatory on each robbery. . . .
THE COURT: Two robberies, first degree, the evidence is overwhelming as to your guilt. You robbed a cabbie and you robbed that tavern. . . . Today you are being sentenced on a charge of Robbery in the First Degree. . . . Sentencing Hr'g Tr. at 7-9 (emphasis added).
The State's Motion to Declare Alvin M. McKamey an Habitual Offender, provides even more convincing evidence of the State's intention to seek habitual offender status as to both robbery convictions. The caption page references both charges of the indictment, "IN94-07-0221 and IN94-07-0222." More significantly, within subsection 3 of the motion, under "Criminal Action," the State denoted "IN94-07-0221 and IN94-07-0222" and under "Charge" denoted "Robbery First Degree (2 counts)." In the prayer for relief that immediately followed subsection 3, the State requested "that this Court declare the defendant to be an Habitual Offender and sentence the defendant under 11 Del. C. Section 4214(b)." Thus, there was no uncertainty surrounding the State's request to have the Defendant declared an habitual offender as to both robbery convictions.
This fact being established, the Court must next address whether it is proper and within its plenary power to rectify this error by granting habitual offender status with respect to IN94-07-0221, although belatedly, without violating or infringing upon Defendant's constitutional rights protecting him from imposition of double jeopardy.
The law in Delaware is well established concerning the Court's role in granting habitual offender status upon request by the State. In Kirby v. State, the defendant was found guilty on nine counts of second degree robbery and the State moved to have the defendant sentenced as an habitual offender, pursuant to 11 Del. C. § 4214(b) and 4215(b), on one burglary count only. At a combined hearing on the sentencing and habitual offender status, the Superior Court sentenced Kirby to nine consecutive life terms, one for each of the burglary counts. The Delaware Supreme Court held that "[w]here the State has moved for habitual offender status pursuant to 11 Del. C. § 4215(b) and such motion becomes the basis for a finding of habitual offender status, the Superior Court may not apply habitual offender status to any greater number of counts than those advanced by the State." According to the Court, "[w]here the State initiates the habitual offender process, the court is limited to granting only the result sought by the State."
Kirby v. State, 1998 WL 184492, at *1 (Del.).
Kirby v. State, 1998 WL 184492, at *2 (Del.) (emphasis added).
Id. at *2.
In Reeder v. State, the Court had initially sentenced the defendant as an habitual offender on only four of the fourteen burglary counts convictions. The State filed a Motion for Correction of Sentence alleging that the Court misapplied 11 Del. C. § 4214 when it did not sentence Reeder as an habitual offender on each count. The Court granted the motion. On appeal, the Delaware Supreme Court reaffirmed the principle set forth in Kirby, in that the Superior Court is limited to granting only the result sought by the State. The Court further opined:
See Reeder v. State, 2001 WL 355732 (Del.).
Reeder, 2001 WL 355732, at *3.
Each separate burglary conviction requires a separate sentence. Because of this, the State has the discretion to seek habitual offender status for each count or none. . . . Simply put, the General Assembly, in enacting § 4214, limited the Superior Court's sentencing discretion once the State properly initiates the habitual offender status process.
Id.
In Hawkins v. State, this Court's limited discretionary power in granting habitual offender status (embodied in the principle that "each separate conviction requires a separate sentence and, therefore, the State has the discretion to seek habitual offender status for each count or none") was tested. On appeal, Hawkins claimed that this Court erred when it applied 11 Del. C. § 4214 to enhance his sentences for both second degree assault and possession of a deadly weapon during the commission of a felony (he had previously been convicted of three qualifying felonies). Relying on both Reeder and Kirby for support, the Delaware Supreme Court affirmed Hawkins' sentence, noting that § 4214(a) clearly mandates that, following a third felony conviction, a defendant must be sentenced as an habitual offender on each subsequent felony conviction.
Hawkins v. State, 2002 WL 384436 (Del.).
Id. at *2.
Id.
The same mandate holds true for § 4214(b) following a second felony conviction. Accordingly, based on Kirby and its progeny, the Court finds that it is not only proper, but mandated by both statute and case law, notwithstanding the lapse of time, to grant habitual offender status for IN94-07-0221 in response to the State's initial request. The Court must comply with the State's original petition to impose habitual offender status for IN94-07-0221. By doing so, the Court is adhering to the principle established in Kirby, granting only the result sought by the State, and no more.
Finally, having found that it is proper to grant habitual offender status to the remaining Robbery First Degree conviction, IN94-07-0221, the Court must examine any potential constitutional ramifications affecting Defendant's right to be free from double jeopardy. The Double Jeopardy Clause, imbued in the Fifth Amendment and applicable to the States through the Fourteenth Amendment, provides that no person "shall . . . be subject for the same offence to be twice put in jeopardy of life or limb." The language of the Delaware Constitution mirrors the language in the federal provision. In United States v. DiFrancesco, the United States Supreme Court defined the legal principles inherent in the Clause as engendering more than a safeguard mechanism protecting individuals from the perils of being twice convicted for an alleged offense. The Court extended the purpose of the Clause such that the constitutional prohibition against double jeopardy applies also to punishments that would follow from a second conviction for the same offense. Accordingly, the Clause protects against both multiple prosecutions and multiple punishments for the same offense.
"[N]o person shall be for the same offense twice put in jeopardy of life or limb . . ." DEL. CONST. art. I, § 8.
"The constitutional prohibition against `double jeopardy' was designed to protect an individual from being subjected to the hazards of trial and possible conviction more than once for an alleged offense. . . . The underlying idea, one that is deeply ingrained in at least the Anglo-American system of jurisprudence, is that the State with all its resources and power should not be allowed to make repeated attempts to convict an individual for an alleged offense, thereby subjecting him to embarrassment, expense and ordeal and compelling him to live in a continuing state of anxiety and insecurity, as well as enhancing the possibility that even though innocent he may be found guilty." United States v. DiFrancesco, 449 U.S. 117, 127-28 (1980) (quoting Green v. United States, 355 U.S. 184, 187-88 (1957)).
DiFrancesco, 449 U.S. at 129.
Id. at 129 (quoting North Carolina v. Pearce, 395 U.S. 711, 717 (1969)).
Adopting the United States Supreme Court's holdings in two decisive cases that challenged double jeopardy violations in resentencing procedures, the Delaware Supreme Court held in White v. State that double jeopardy is not implicated when a defendant has no legitimate expectation of finality in his original sentence. To elaborate, "[a]fter a related sentence has been vacated on appeal, a trial judge may resentence a defendant up to the combined duration of the original sentences without violating the constitutional prohibition against double jeopardy." The Court in White overruled the prevailing rule, which it had previously established in Hunter v. State (" Hunter's" rule) regarding double jeopardy implications at resentencing, and returned to the limitation that it had previously abandoned in Davis v. State in favor of Hunter's rule. That is to say, the Court in White reinstated only that portion of Davis addressing the problem of double jeopardy in resentencing. "Specifically, Davis held that `[a]t resentencing, the trial judge will not be limited to the mandatory minimum sentence imposed initially for the attempted robbery conviction, but the sentence may not exceed the combined duration of the two terms imposed before the appeal.'"
See Pennsylvania v. Goldhammer, 474 U.S. 28, 30 (1985) (per curiam); United States v. DiFrancesco, 449 U.S. 117, 136-37 (1980).
White v. State, 576 A.2d 1322, 1323 (Del. 1990) (holding that the trial court's resentencing after a related charge was vacated on appeal, did not violate the constitutional prohibition against double jeopardy because the appellant had no legitimate expectation of finality in his sentence).
Id. at 1328.
Hunter v. State, 420 A.2d 119, 132 (Del. 1980) (holding that a trial judge could not resentence a defendant to a term greater than the sentence originally imposed if the defendant had already begun to serve the sentence).
Davis v. State, 400 A.2d 292, 297 (Del. 1979) (holding that a trial judge was only limited in resentencing a defendant by the combined duration of the sentences imposed before appeal).
White, 576 A.2d at 1323 n. 2 (quoting Davis, 400 A.2d at 297).
As the similarity of circumstances will prove, the Davis rule, as reinstated in White, can be applied to the instant case. Just as the White Court determined that the defendant who challenged his robbery and weapons convictions on appeal based on double jeopardy grounds, had no legitimate expectation of finality in his original sentence, so this Court finds that the Defendant who challenged his two robbery convictions in his motion for postconviction relief, albeit one based on principles of stare decises and the other based on double jeopardy, had no legitimate expectation of finality in his original sentence. The convictions were completely independent, yet each mandated habitual offender status pursuant to 11 Del. C. § 4214(b).
While the defendant in White appealed his convictions on double jeopardy grounds, whereas this Defendant seeks collateral relief to have one conviction reduced based on overturned law and the other challenged on double jeopardy grounds, the Court finds that both convictions, though independent, are interrelated and duly implicate double jeopardy principles of constitutionality. Even though Defendant's sentence was not vacated on appeal, as in White, but rather reduced pursuant to a Rule 61 motion for postconviction relief, the Court finds that the circumstances are so similar that the Davis rule is appropriate in this case as well.
Applying the rule of law set forth in White, therefore, this Court may resentence the Defendant up to the combined duration of the original sentences without violating the constitutional prohibition against double jeopardy. His original sentences were life imprisonment and twenty years incarceration at Level V. Upon resentencing, he will receive a life imprisonment sentence in connection with IN 94-07-0221 pursuant to 11 Del. C. § 4214(b) and a maximum of up to five years in connection with IN94-07-0222 pursuant to 11 Del. C. § 831 and 4205(b)(5). Defendant's original sentence will not increase, but, in actuality, will decrease by fifteen years. Thus, the Defendant's due process claim must fail.
Lastly, the Court cannot conclude its discussion without directing its attention to the original error in sentencing. The Court finds that the error was harmless. Defendant had been convicted of two counts of Robbery First Degree. Based on the circumstances of his prior felony convictions, coupled with the State's request to grant habitual offender status to both convictions, the law required that he be sentenced to one term of life imprisonment without benefit of probation or parole for each conviction. Defendant will receive the sentence that he would have received if he had been properly sentenced pursuant to 11 Del C. § 4214(b).
See Saunders v. State, 602 A.2d 623, 625 (Del. 1989). The defendant was convicted of murder first degree and five other felonies which qualified him to be determined an habitual offender under 11 Del. C. § 4214(a). The trial court sentenced the defendant to six concurrent life sentences without benefit of probation or parole under 11 Del. C. § 4214(a). It was properly determined that the defendant was an habitual offender pursuant to § 4214(a) insofar as the statute applied to the convictions other than the murder conviction. However, he was improperly sentenced to six life terms without benefit of probation or parole, because subsection (a) did not provide that life sentences given pursuant thereto shall be without benefit of probation or parole. The Delaware Supreme Court found that the sentences under the statute were harmless errors insofar as the law required that he be sentenced to life imprisonment without benefit of probation or parole under 11 Del. C. § 4209 for the murder first degree conviction and, as to the five sentences properly imposed under § 4214(a), the improper restriction as to probation and parole were to be stricken. Thus, the Court concluded, the defendant received the sentence he would have received if he had been properly sentenced pursuant to § 4209.
Simply put, 11 Del. C. § 4214(b) states, "[t]he Court . . . shall impose a life sentence . . ." upon any person who already has been twice convicted of one of the enumerated felonies specified therein. It remains undisputed that at the time of sentencing, the Defendant's two Robbery First Degree convictions certified him for habitual offender status on both convictions and the Court was required to sentence the Defendant as an habitual offender on both convictions. Passage of time neither obviates the Court's duty to impose this sentence nor undermines the legality of the sentence in a manner to the ultimate prejudice of the Defendant. Accordingly, at the resentencing hearing in connection with IN94-07-0221, Defendant's sentence shall be corrected and increased from twenty years incarceration at level V to life imprisonment without benefit of probation or parole.
DEL. CODE ANN. tit. 11 Del. C. § 4214(b) (2001 Supp. 2002) (emphasis added).
Conclusion
For all of the foregoing reasons, Defendant's Motion for Postconviction Relief Pursuant to Superior Court Criminal Rule 61 is hereby GRANTED IN PART with respect to the reduction of his sentence from Robbery First Degree to Robbery Second Degree on count IN94-07-0222 of the indictment. Defendant's Motion is DENIED IN PART, with respect to Defendant's request that the Court not impose habitual offender status of life imprisonment without probation or parole on the Defendant, as mandated by 11 Del. C. § 4214(b), in connection with count IN94-07-0221 of the indictment for the criminal conviction of Robbery First Degree.