State v. Smith ( 2022 )


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  •       IN THE SUPERIOR COURT OF THE STATE OF DELAWARE
    STATE OF DELAWARE                    )
    )
    v.                                   )      ID No. 2009007545
    )
    UNIQUE SMITH,                        )
    )
    Defendant.                    )
    Submitted: March 16, 2022
    Decided: April 18, 2022
    Upon Defendant’s Motion for Reduction of Sentence
    DENIED
    MEMORANDUM OPINION AND ORDER
    Michael H. Tipton, Esquire, Deputy Attorney General, Department of Justice, 13
    The Circle, Georgetown, DE 19947, Attorney for State of Delaware.
    Benjamin S. Gifford IV, Esquire, 14 Ashley Place, Wilmington, DE 19804, Attorney
    for Defendant.
    KARSNITZ, R.J.
    On October 6, 2021, Unique Smith (“Smith” or “Movant”) came before me
    and, after a thorough colloquy, entered a guilty plea to two felony charges:
    Manslaughter and Possession of a Firearm During the Commission of a Felony
    (“PFDCF”). The parties agreed to a presentence investigation and open
    sentencing. The State of Delaware (the “State”) agreed to cap its recommendation
    for Level 5 incarceration at 50 years, suspended after 25 years at Level 5 for
    various degrees of probation. I ordered a presentence investigation report, and
    Movant was scheduled to be sentenced on November 19, 2021. Counsel for
    Movant provided the presentence officer with a forensic evaluation of Movant
    conducted by Dr. Jordan Bell (the “Bell Report”). The Bell Report was attached
    to Movant’s presentence report.
    I held a sentencing hearing on November 19, 2021. At sentencing, Movant’s
    counsel advocated for a total sentence of 5 years of incarceration at Level 5. The
    State advocated for a cumulative sentence of 25 years of incarceration at Level 5. I
    sentenced Movant to Level 5 incarceration for 50 years, suspended after a
    cumulative 22 years at Level 5 for descending levels of probation. I also imposed
    1
    various fines, costs, and other conditions.              In doing so, I articulated six (6)
    aggravating factors: (1) Lack of Amenability to Lesser Sanctions; (2) Custody
    Status at Time of Offense; (3) Undue Depreciation of the Offense; (4)
    Vulnerability of Victim; (5) Repetitive Criminal Conduct; and (6) Excessive
    Cruelty.
    On February 17, 2022, Movant timely filed1 his first Motion for Reduction of
    Sentence (the “Motion”) under Superior Court Criminal Rule 35(b), asking that I
    reduce his sentence to between 8 and 12 years. On March 16, 2022, the State filed
    its Response to the Motion, asking that the sentence remain the same. This is my
    ruling on the Motion.
    SENTAC Guidelines
    Defendant asserts that I erroneously exceeded the presumptive guidelines
    for Manslaughter and PFDCF. The range of sentences for Movant’s
    Manslaughter and PFDCF convictions are from 5 years to 50 years at Level 5.
    As discussed more fully below, I imposed a legal sentence based upon the facts and
    1
    Within 90 days after imposition of sentence under Super. Ct. Crim. R. 35(b).
    2
    circumstances surrounding Movant’s crimes.
    In support of his Motion, Defendant argues that I violated several provisions
    of the Delaware Sentencing Accountability Commission ("SENTAC"), which
    was created with the purpose of establishing a system in Delaware "that
    emphasizes accountability of the offender to the criminal justice system and
    accountability of the criminal justice system to the public."2 To fulfill that purpose,
    SENTAC establishes sentencing guidelines located within the Benchbook.3 The
    presumptive sentences established by SENTAC "are based on the classification
    of the offense, and whether it is violent or non-violent in nature."4             The
    Benchbook also enumerates specific aggravating and mitigating factors that I should
    consider when imposing a sentence.5 While the "standard sentence range is
    presumed to be appropriate for the typical criminal case," the existence of such
    2
    Delaware Sentencing Accountability Commission Benchbook, at 21 (2020) ("the
    Benchbook").     The Benchbook can be located at https://cjc.delaware.gov/wp-
    content/uploads/sites/6l/2020/02/Benchbook-2020F. pdf.
    3
    The Benchbook at 21.
    4
    Id.
    5
    The Benchbook at 110-14.
    3
    factors can justify upward or downward departures from those guidelines. 6 Each
    of the enumerated aggravating and mitigating factors includes definitions
    promulgated by SENTAC.7 The guidelines established by SENTAC are presumptive
    only, and not binding on the sentencing judge.8
    There is no constitutional or statutory right under Delaware law to appeal a
    criminal punishment on the sole basis that it deviates from the SENTAC
    sentencing guidelines."9 "[T]he trial court must explain its reasons for doing so,
    but it is authorized to exceed the SENTAC guidelines without making any factual
    findings beyond those reflected in the jury's verdict,"10 or, as in this case, the
    charges to which the Defendant pled guilty. While it is within my discretion to
    reduce a criminal sentence, justice is not served by a redundant reassessment of
    the facts known and available to me at the time of sentencing.11 While Movant is
    6
    The Benchbook at 110.
    7
    The Benchbook at 112-14.
    8
    Walters v. State, 
    2013 WL 4540040
     at *1 (Del. Supr. Aug. 23, 2013).
    9
    Siple v. Slate, 
    701 A.2d 79
    , 83 (Del.1997).
    10
    
    Id.
    11
    See In re Briddelle, 
    2004 WL 344006
     (Del. Super. Feb. 17, 2004) (noting that "[t]here
    must be some finality to cases.").
    4
    displeased with the sentence imposed, no new or different facts have been
    offered that were not known to the parties at the time of sentencing.
    Aggravating Factors
    Movant asserts that I improperly relied on three aggravating factors:
    Vulnerability of Victim, Repetitive Criminal Conduct, and Excessive Cruelty.
    Vulnerability of Victim
    With respect to Vulnerability, I considered that the victim was defenseless
    and Movant shot him in the back. The Benchbook defines the vulnerability factor
    as follows: "The Defendant knew, or should have known, that the victim of the
    offense was particularly vulnerable or incapable of resistance due to extreme youth,
    advanced age, disability, or ill health.”12 Although the victim may not have been
    extremely young or old, physically handicapped, or sick, in my view he certainly
    was vulnerable because he was incapacitated and could not resist.
    Repetitive Criminal Conduct
    12
    The Benchbook at 112.
    5
    With respect to Repetitive Criminal Conduct, The Benchbook defines such
    conduct as a "conviction or adjudication for the same or similar offense on two or
    more previous, separate occasions."13 The Benchbook also provides that when
    sentencing on more than one offense, "prior criminal history should be
    considered only in determining the guideline for the 'lead' or most serious
    offense. Sentences for other current charges shall be calculated based on zero
    criminal history."14 The Benchbook f u r t h e r states that "[ f]or the purposes of
    sentencing, only those offenses adjudicated at age 14 or older shall be counted in
    prior history."15
    Movant argues that the governing offense is the most serious offense, in
    this case, PFDCF, because it carries a longer minimum mandatory sentence than
    Manslaughter, and that there is only one such incident of similar conduct. One
    similar incident was adjudicated in Family Court when Movant was only 13
    13
    
    Id.
    14
    The Benchbook at 26, Policy 7.
    15
    The Benchbook at 25, Policy 3.
    6
    years old, and therefore does not count. In another, the prosecution entered a
    nolle prosequi, and therefore it is not a conviction which counts. This leaves
    only one conviction for a similar offense, rather than the requisite two.
    Although Movant may not technically meet the definition of Repetitive
    Criminal Conduct, there are certainly similar charges (albeit not countable
    convictions). In any event, even if this aggravating factor is completely
    disregarded, I would not have imposed a lesser sentence.
    Excessive Cruelty
    Movant asserts extensively that I misjudged the nature of the confrontation
    between Movant and the victim, as evidenced by a surveillance video of the
    altercation. At sentencing I did not, and as I write this decision I do not, perceive
    the need to view this video, which I am told is grainy and, in any event, whose view
    is blocked when the fatal shot is fired. Movant argues that I should have viewed the
    video at sentencing as the “best evidence” of the crime. Sentencing, however, is not
    the time for Movant to attempt to relitigate the facts of his case. Ignoring his guilty
    7
    plea to all elements of the crimes, and the fulsome colloquy surrounding that plea,
    Movant now argues, based on extrinsic evidence, that the victim unquestionably
    was the instigator, that Movant attempted to retreat from the victim before any
    physicality took place, and that the shooting was wholly accidental.
    I stand by my statement at sentencing:
    I think the best evidence I have here as to what happened is that there
    was this altercation and Mr. Akins was assaulted, and he may, or may
    not, but he may have, initiated this. Frankly, that doesn't matter a whole
    lot to me at this point because even if he did, it doesn't justify what
    happened to him. What is clear to me is that Mr. Akins was in a
    defenseless position when you, Mr. Smith, approached him and shot
    him in the back.
    Mr. Gifford indicated to me that this shouldn't be a case that shocks the
    conscience of the Court. This shocks my conscience. Again, I ask
    myself what really happened here and why did it. This was a brutal
    crime. It was an execution.16
    If this does not meet the definition of “excessive cruelty,” I do not know what does.
    The Delaware Supreme Court has interpreted the sentence rationale given
    by a sentencing Judge as a proper overall assessment of the defendant’s
    16
    Transcript of Sentence Hearing dated November 19, 2021, at 23-24.
    8
    tumultuous behavior.17 The Supreme Court viewed the sentencing Court's
    assessment as a “single aggravating circumstance rather than as a mechanistic
    adding up of SENTAC aggravators that result in a sentence of a given length."18 The
    Court came to this conclusion because the bulk of the sentencing Court's statement
    was about the "overall assessment of Davenport's tumultuous relationship with
    Wilson." 19
    My statement at Movant’s sentencing (see previous page) was related to
    the pointless nature of the shooting. As in Davenport, I listed the aggravating
    factors that I considered, but the list itself "was a matter of rhetorical emphasis
    reinforcing the Superior Court's major point,"20 which was the pointless and
    violent killing of a defenseless victim.
    Mitigating Factors
    17
    Davenport v. State, 
    150 A.3d 274
     (Table) (Del. 2016).
    18
    
    Id.
    19
    
    Id.
    20
    
    Id.
    9
    Movant also asserts that I sentenced him with a closed mind, in violation of
    Superior Court Criminal Rule 32(a), in that I did not consider mitigating factors,
    primarily those detailed in the Bell Report, including the following:
    Nondevelopmental Factors
    Parenting and Family Factors
    Community Factors
    Disturbed Trajectory Factors
    Protective Factors
    The Delaware Supreme Court has held that Rule 32(a) "requires, by
    necessary implication, that before finally reaching a decision as to sentence, the
    sentencing judge have an open mind at least to the extent of receiving all
    information bearing on the questions of mitigation."21 That Court has also stated
    that a judge sentences with a closed mind when the sentence is based on a
    preconceived bias without consideration of the nature of the offense or the
    21
    Bailey v. State, 
    450 A.2d 400
    ,406 (Del. 1982) (quoting Osburn v. State, 
    224 A.2d 52
    , 53
    (Del. 1966)).
    10
    character of the defendant.22 "A judge must have an open mind for receiving all
    information related to the question of mitigation."23
    Movant mischaracterizes my consideration of the mitigating factors.
    Movant’s counsel provided the presentence investigator with the Bell Report, which
    was then summarized in the presentence investigation report and attached in full as
    an addendum to the report. In fact, I read the entire Bell Report as an integral part
    of the presentence investigation. I took all the mitigating factors described in detail
    by Dr. Bell into account when imposing sentence on Movant.
    I spent a significant portion of my sentencing statement addressing the
    nature of the shooting. I addressed Movant’s character when I found Movant to
    pose a danger to the community. When I began my sentencing statement, I
    referenced the presentencing investigation and how I relied upon it in crafting my
    sentence.
    22
    Ellerbe v. State, 
    755 A.2d 387
     (Del. 2000).
    23
    Johnson v. State, 
    143 A.3d 1
     (Del. 2016) (Table).
    11
    During sentencing argument, Movant’s counsel again focused on the
    mitigating factors. I listened to those statements. I allowed Movant to speak to
    me directly. Movant had a prewritten letter read on his behalf by his counsel. I then
    gave Movant another opportunity to address m e , w h i c h h e chose not to do. I
    thanked a l l parties for their comments and indicated t h a t they were helpful.
    Considering all relevant facts and viewing them rationally is not bias, but is an
    exercise of judgment.
    Reliance on False, Impermissible, or Unreliable Facts
    Finally, Movant asserts that, contrary to Delaware law, I imposed a sentence
    that "is based on factual predicates which are false, impermissible, or lack
    minimal reliability."24      H e a s s e r t s t h a t I “inadvertently” imposed the
    sentence on him relying upon misperceived facts about the events that led to the
    24
    Whittle v. State, 
    2021 WL 3578625
     at *2 (Del. Supr. Aug. 12, 2021); Thomas v. State, 
    2020 WL 3259486
     at *1 (Del. Supr. June 16, 2020) (citing Kurzmann v. State, 
    903 A.2d 702
    , 714
    (Del. 2006)).
    12
    death of the victim, thus leading to the imposition of a harsher sentence.
    My sentence was assuredly not “inadvertent.” I relied on the presentence
    investigation, which contained police reports, witness statements, crime photos,
    and the autopsy report, when crafting Movant’s sentence. I also relied on the
    arguments provided by the parties at the sentencing hearing. These items meet
    the minimum indicia of reliability and have not been proven to be demonstrably
    false.
    However, as discussed above, Movant asserts that I misjudged the nature of
    the confrontation between Movant and the victim, as evidenced by a surveillance
    video of the altercation. Movant now argues, based on this video, that the victim
    unquestionably was the instigator, that Movant attempted to retreat from the
    victim before any physicality took place, and that the shooting was wholly
    accidental. In my view, the video does not prove that I relied on demonstrably
    false facts. I am told by counsel that the video, which I did not rely on when making
    my sentencing decision, depicts a fight between the parties. Though it shows the
    13
    steps leading up to the shooting and Movant’s actions after the shooting, the
    video is inconclusive because the crowd’s position during the shooting blocks
    any view of the shooting itself. Movant interprets the video in the light most
    favorable to him. This interpretation of the video is not supported by the
    eyewitness testimony and other actions of Movant. In my view, the video is not
    proof that the police reports and eyewitness statements in the presentence
    investigation u p o n w h i c h I r e l i e d a r e demonstrably false.
    The Delaware Supreme Court has stated: “We review a sentence
    determination on appeal only to determine whether it is within the applicable
    statutory limits and whether it is based upon factual predicates which are false or
    impermissible, or which lack minimal reliability, judicial vindictiveness or bias,
    or a closed mind."25 And further, "In Delaware, the trial court has broad discretion
    in determining which information to rely on in imposing a sentence, including
    information pertaining to the defendant's personal history and behavior, the
    25
    Kurzmann v. State 
    903 A.2d 702
    , 714 (Del. 2 0 0 6 ).
    14
    presentencing report, and other sources."26 "Thus, in reviewing a sentence within
    statutory limits, this Court will not find error of law or abuse of discretion unless
    it is clear from the record below that a sentence has been imposed on the basis of
    demonstrably false information or information lacking a minimal indicium of
    reliability.”27
    Under these standards, my sentence was not based on false, impermissible, or
    unreliable facts.
    For the reasons stated above, I DENY Defendant’s Motion for Reduction of
    Sentence.
    IT IS SO ORDERED.
    /s/ Craig A. Karsnitz
    cc: Prothonotary
    26
    Mayes v. State, 604 A .2d 839, 842 (Del. 1992).
    27
    Mayes v. State, 604 A.2d at 842 (quoting Ward v. State, 
    567 A.2d 1296
    , 1297 (Del. 1989)).
    15