Davenport v. State

IN THE SUPREME COURT OF THE STATE OF DELAWARE
FRANK DAVENPORT, §
§ No. 690, 2015
Defendant Below, §
Appellant, § Court Below—Superior Court
§ of the State of Delaware
v. §
§
STATE OF DELAWARE, § Cr. ID No. 1401014417
§
Plaintiff Below, §
Appellee. §
Submitted: September 21, 2016
Decided: October 21, 2016
Before STRINE, Chief Justice; HOLLAND and SEITZ, Justices.
ORDER
This 21st day of October 2016, it appears to the Court that:
(1) In this case, appellant Frank Davenport argues that his sentence for
Manslaughter and Possession of a Deadly Weapon During the Commission of a
Felony should be reversed. His arguments are: i) that the State impermissibly
breached its plea deal with him by asking the Superior Court to sentence
Davenport to no less than the sentence cap to which Davenport and the State
agreed; ii) that the Superior Court used inaccurate information to sentence
Davenport in violation of his due process rights; and iii) that the Superior Court
impermissibly ordered Davenport to pay restitution to the Victim‘s Compensation
Assistance Program (―VCAP‖).
(2) The Superior Court heard evidence at the sentencing hearing about
how Davenport lived for several years with Holly Wilson, his girlfriend.1
Evidence was presented that people who knew Wilson thought that Davenport was
abusing her,2 and, in fact, the record reflected that he was charged in 2008 and
again in 2009 with offenses related to Wilson—offensive touching and terroristic
threatening.3 The second offense resulted in a no contact order that was still in
place during the events at issue in this case.4 On January 15, 2010, Davenport and
Wilson spent part of the night at bars together—in violation of Davenport‘s no
contact order—and, according to testimony presented in the police report, they
fought while they were together.5 After getting home, Wilson was shot.6
Davenport was at Wilson‘s home when Wilson was shot and reported it to the
police as suicide.7 Davenport was ultimately charged with Wilson‘s murder and
related charges. He took a plea agreement with the State where he pled no contest
1
E.g., App. State Del.‘s Answering Br. at B11 (Cpl. Burton‘s Supplemental Police Report, May
5, 2011, complaint #32-10-005632) [hereinafter Cpl. Burton’s Report].
2
E.g., id. at B14 (describing interviews with Wilson‘s neighbors and coworkers who reported
injuries that they took to be signs of abuse).
3
Id. at B1–B4 (Arrest warrant and affidavit of probable cause, Dec. 10, 2008, State v. Frank
Davenport, Case No. 0812006991) (reflecting charges against Davenport for offensive touching
of Wilson); id. at B5–B9 (Arrest warrant and affidavit of probable cause, Oct. 18, 2009, State v.
Frank Davenport, Case No. 0910012767) (reflecting charges against Davenport for terroristic
threatening of Wilson).
4
See App. Appellant‘s Opening Br. at A-22 (DELJIS Charge Summary for Frank Davenport)
(reflecting no contact order in place).
5
Id. App. State Del.‘s Answering Br. at B15–B16 (Cpl. Burton‘s Report) (describing interviews
with bartenders at the bars Davenport and Wilson visited that night).
6
Id. at B10.
7
Id. at B11 (describing Davenport‘s call to the police).
2
to a manslaughter charge and a weapons charge. The State committed to not seek
a sentence of greater than ten years.8 In advance of the sentencing hearing, the
State submitted a case summary describing not only the events on the day leading
to Wilson‘s death but also the history of Davenport‘s relationship with Wilson,
pictures of Wilson‘s body, and home videos of Wilson with her family. 9 At the
hearing, Davenport asked for a five-year sentence—the statutory minimum—and
the State asked for a ten-year sentence.10
(3) After hearing that evidence, the Superior Court noted the series of
incidents involving Davenport and Wilson before the killing. The Superior Court
observed that the charges for offensive touching and terroristic threatening were
dismissed ―as we sometimes see in domestic violence cases.‖11 The Superior Court
referred to the existence of the no contact order as ―most significant.‖12 Other than
those observations, the Superior Court referred to no other events or circumstances
before the night of the killing. After making those observations, the Superior
8
Id. at B210 (Plea Hearing Transcript, May 27, 2015, State v. Frank Davenport, Case No.
1401014417); App. Appellant‘s Opening Br. at A-29 (Plea Agreement, May 27, 2015, State v.
Frank Davenport, Case No. 1401014417).
9
App. Appellant‘s Opening Br. at A-31 to A-74 (Case Summary, Nov. 9, 2015, State v. Frank
Davenport, Case No. 1401014417).
10
Compare id. at A-77 (Sentencing Transcript, Nov. 20, 2015, State v. Frank Davenport, Case
No. 1401014417 (recording the State as saying ―[a]ny sentence less than 10 years would unduly
depreciate and ignore the violence and the abuse Holly Wilson endured at the hands of the
defendant‖) [hereinafter Sentencing Hearing]), with id. at A-84 (recording Davenport‘s request
for ―five years incarceration‖).
11
Id. at A-85.
12
Id.
3
Court summarized its view of the aggravating and mitigating factors and imposed a
twenty-year sentence and ordered that Davenport pay restitution to VCAP.
Davenport appealed, arguing that his sentence should be modified.
(4) As indicated, Davenport raises three issues on appeal. First,
Davenport argues that the State breached its plea agreement to not seek more than
ten years incarceration for him by presenting materials to the Superior Court that
suggested his crimes and history justified a lengthy sentence. Not only was this
argument not properly presented below and therefore subject only to review for
plain error,13 it is without merit. Davenport‘s argument that the State engaged in a
de facto breach of its plea agreement founders on a key factor he fails to
emphasize: he did not argue to the Superior Court that it should sentence him to the
ten-year cap to which the State agreed. Instead, Davenport argued for a sentence
of half that. Because he argued for only a five-year sentence, the State was fully
within its rights to present evidence justifying the Superior Court in imposing the
ten-year sentence to which it had agreed. Nowhere in the record did the State seek
a sentence above ten years, and to the extent that it presented evidence that the
Superior Court, in its discretion, utilized to impose a sentence of twenty years,
Davenport‘s own strategy invited the presentation of that evidence to overcome his
argument that he should only receive five years.
13
Russell v. State, 5 A.3d 622, 627 (Del. 2010) (citing Del. Supr. Ct. R. 8; Wainwright v. State,
504 A.2d 1096, 1100 (Del. 1986)).
4
(5) Second, Davenport argues, in essence, that the Superior Court used
inaccurate information in sentencing him. At sentencing, the Superior Court stated
the overall sentence, the potential for trial avoided by the plea agreement, a number
of points from the record about the relationship between Davenport and Wilson,
and then summed up Davenport‘s situation by saying:
I find the aggravating factors as follows: Prior violent criminal
conduct with respect to Holly Wilson as an identified victim;
repetitive criminal conduct with respect to Holly Wilson as a
identified victim; prior abuse of the victim; and vulnerability of the
victim. I find in mitigation childhood trauma.14
Davenport argues that this statement represents the Superior Court applying
specific aggravators used in the guidelines created by the Delaware Sentencing
Accountability Commission (―SENTAC‖): Prior Violent Criminal Conduct,
Repetitive Criminal Conduct, and Vulnerability of Victim. Davenport argues that
the Superior Court improperly used those defined aggravators to determine the
length of his sentence. Each of those aggravators is defined in the SENTAC
Benchbook, which is ―designed to assist sentencing judges . . . in the formulation
of sentences that are consistent with the goals of sentencing reform . . . .‖15 The
Benchbook presents ―recommended‖ sentencing ranges for given crimes ―when
aggravating or mitigating factors are not present‖ as well as ―[a]ggravating and
mitigating factors‖ that are ―to be used to explain a sentence imposed either above
14
App. Appellant‘s Opening Br. at A-85 to A-86 (Sentencing Hearing).
15
DELAWARE SENTENCING ACCOUNTABILITY COMMISSION, BENCHBOOK 22 (2014).
5
or below the presumptive sentence.‖16 Salient for this case, the Benchbook also
notes that ―[o]ther factors, which do not appear on this list, may be utilized at the
discretion of the sentencing judge.‖17 Thus, the Benchbook defines Prior Violent
Criminal Conduct as ―[d]efendant has demonstrated, by his prior criminal history,
a propensity for violent criminal conduct.‖18 Repetitive Criminal Conduct is
defined in the SENTAC Benchbook as ―conviction or adjudication for the same or
similar offense on two or more previous, separate occasions.‖19 And Vulnerability
of Victim is defined in the SENTAC Benchbook as ―[t]he 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.‖20 Davenport correctly argues that if the Superior Court‘s decision had
been based on those specific SENTAC aggravators, the resulting sentence would
have been reversible error because the record before the Superior Court does not
support the proposition that i) Davenport was a convicted and reoffending violent
criminal, ii) that he had been convicted of an unlawful killing on two other
occasions, or iii) that Wilson was especially vulnerable to Davenport due to her
age or health.
16
Id. at 23.
17
Id.
18
Id. at 128.
19
Id. at 129.
20
Id.
6
(6) But, this Court does not read the Superior Court‘s sentencing
statement as applying defined SENTAC aggravators to determine Davenport‘s
sentence. Instead, the context of the bulk of the sentencing statement leading up to
its summative paragraph—the paragraph upon which Davenport relies so
heavily—reveals that the Superior Court permissibly exercised its discretion to
base its sentence on an overall assessment of Davenport‘s tumultuous relationship
with Wilson and that relationship‘s horrific ending. That assessment served as a
single aggravating circumstance rather than as a mechanistic adding up of
SENTAC aggravators that result in a sentence of a given length. The Superior
Court‘s use of the phrase ―with respect to Holly Wilson‖ in connection with the
terms ―[p]rior violent criminal conduct‖ and ―repetitive criminal conduct‖ makes
this clear.21
(7) The summative paragraph on which Davenport singularly focuses is
actually the culmination of the Superior Court‘s discussion of specific evidence
that was presented during the sentencing hearing. In the sentencing statement, the
Superior Court noted a series of incidents involving Davenport and Wilson before
the killing, including when Davenport was charged with offensive touching and
terroristic threatening of Wilson.22 The Superior Court noted both that the charges
21
App. Appellant‘s Opening Br. at A-85 (Sentencing Hearing).
22
Davenport also argues that some of his conduct with Wilson that the Superior Court refers to
was supported by insufficiently reliable evidence that was ―unknown‖ or ―vague.‖ Appellant‘s
7
were dismissed ―as we sometimes see in domestic violence cases‖ and that the no
contact order continued to be in place through Wilson‘s death.23 Importantly, the
Superior Court referred to the existence of the no contact order as ―most
significant.‖24 The Superior Court referred to no other events or circumstances
before the night of the killing in its sentencing statement.
(8) Thus, this Court disagrees with Davenport‘s theory that the Superior
Court mistook him for a previously convicted, violent criminal whose victim was
elderly or ill. Rather, in light of the pages of evidence presented to accompany the
hearing, as well as the Superior Court‘s own description of the record, the most
reasonable understanding of the Superior Court‘s reference to ―aggravating
factors‖ is as a matter of rhetorical emphasis—reinforcing the Superior Court‘s
major point, which was that this killing was the culmination of a long-standing
pattern of abuse by Davenport toward Wilson that was critical to its decision to
Opening Br. at 28. Due process requires that information used in sentencing meet a ―‗minimal
indicium of reliability beyond mere allegation‘ standard,‖ but the evidence that the Superior
Court considered regarding Davenport‘s past domestic abuse of and violence toward Wilson was
sufficiently reliable. Mayes v. State, 604 A.2d 839, 840 (Del. 1992) (quoting United States v.
Baylin, 696 F.2d 1030, 1040 (3d Cir. 1982)). The conduct the Superior Court cites in its
sentencing statement was supported by arrest warrants and affidavits, App. State Del. Answering
Br. at B1–B4 (Arrest warrant and affidavit of probable cause, Dec. 10, 2008, State v. Frank
Davenport, Case No. 0812006991) (reflecting charges against Davenport for offensive touching
of Wilson); id. at B5–B9 (Arrest warrant and affidavit of probable cause, Oct. 18, 2009, State v.
Frank Davenport, Case No. 0910012767) (reflecting charges against Davenport for terroristic
threatening of Wilson), testimony from Wilson‘s son, id. at B19 (Cpl. Burton‘s Report), and
police interview records with other identified individuals in a position to personally observe
Wilson‘s conduct and interactions with Davenport, id. at B11, B14, B15, B20.
23
App. Appellant‘s Opening Br. at A-85 (Sentencing Hearing).
24
Id.
8
impose a sentence that, although above the SENTAC guideline range, was half of
the statutory maximum. That is, the Superior Court‘s remarks cannot be
reasonably read as erroneously citing to factors defined in the SENTAC
Benchbook, but instead the remarks read in context plainly reflect the Superior
Court‘s own assessment of what factors were relevant, and that the Superior Court
was not using this terminology in the same sense as it is used in the SENTAC
Benchbook. However confusing, that linguistic overlap in usage does not create
grounds for reversal. Put simply, it was permissible for the Superior Court to
consider a woman who remained in a relationship fraught with the potential for
violence—despite multiple interventions by the police and a no contact order—to
be vulnerable. Again, the Superior Court was focused on the abusive relationship
and Wilson‘s related vulnerability as factors rationally supporting its conclusion
that Davenport deserved a lengthier sentence. Davenport cannot have reasonably
expected that his past tumultuous history of relations with Wilson would not have
been a central factor in his sentencing. Trial courts have broad discretion to issue
sentences within statutory limits and do not have to adhere to the SENTAC
guidelines, which by their own terms are advisory and do not create any
enforceable right to have them specifically adhered to by the Superior Court.25
25
―[T]his Court has consistently held that it is without appellate jurisdiction in criminal cases to
review challenges on the sole basis that a punishment deviated from the SENTAC sentencing
guidelines.‖ Siple v. State, 701 A.2d 79, 83 (Del. 1997) (citing Mayes v. State, 604 A.2d 839,
9
Although we urge the Superior Court to use greater precision, particularly when
explaining to what extent a sentence is supported by the specific SENTAC factors
and to what extent a sentence is underpinned by an exercise of judicial discretion
taking into consideration facts not addressed in the SENTAC factors, in this case
the record provides rational support for the Superior Court‘s sentence and we find
no basis to conclude that the Superior Court premised its sentence on an erroneous
application of the SENTAC guidelines.
(9) Third, Davenport now argues that it was plain error for him to be
ordered to pay restitution to the VCAP under an amended version of 11 Del. C.
§ 9014 rather than the one in place at the time he committed the manslaughter.26
This argument was not properly presented below and cannot possibly rise to plain
error. At all relevant times, a statute was in place that required persons convicted
of crimes like Davenport committed to pay restitution.27 Even had Davenport
raised this issue properly, he would have to show that somehow the amendment
845–46 (Del. 1992); Gaines v. State, 571 A.2d 765, 767 (Del. 1990); Ward v. State, 567 A.2d
1296, 1297–98 (Del. 1989)).
26
Before August 12, 2014, 11 Del. C. § 9014 was silent on the VCAP‘s ability to recover a
restitution award made against a convicted defendant directly rather than indirectly through the
victim herself. The revision, effective before Davenport‘s plea hearing and sentencing clarifies
that ―[w]henever any person is sentenced for an offense and compensation has been paid under
this chapter to a victim of such offense, the Agency may assert a claim for reimbursement of the
Victims‘ Compensation Fund as restitution from the criminal defendant.‖ 11 Del. C. § 9014(c).
27
When this Court previously examined the power of courts to award restitution to VCAP, this
Court considered the law as it existed at the time of the defendant‘s restitution hearing. State,
Victims’ Compensation Assistance Program v. Chianese, 128 A.3d 628, 631 (Del. 2015). Here,
§ 9014(c) established VCAP‘s authority to seek restitution at the time of the sentencing hearing.
10
was more than procedural and imposed on him after-the-fact liability.28 Given that
he did not even argue this issue below and that restitution is a long-standing
requirement of our law,29 the Superior Court did not commit plain error by
applying the statute that both the State and Davenport‘s counsel contended was
applicable to his duty to pay restitution.
NOW, THEREFORE, IT IS ORDERED that the judgment of the Superior
Court is AFFIRMED.
BY THE COURT:
/s/ Leo E. Strine, Jr.
Chief Justice
28
The effect of the statutory difference Davenport focuses on is to whom the Superior Court
could order him to pay restitution, not if he could be ordered to pay restitution or its extent. ―To
fall within the ex post facto prohibition [of the United States Constitution], a law must be
retrospective—that is ‗it must apply to events occurring before its enactment‘—and it ‗must
disadvantage the offender affected by it‘ by altering the definition of criminal conduct or
increasing the punishment for the crime.‖ Snyder v. Andrews, 708 A.2d 237, 248 (Del. 1998)
(quoting Lynce v. Mathis, 519 U.S. 433, 441 (1997)). The amendment did not increase a
defendant‘s exposure, it just made clear that if VCAP paid the victim restitutionary funds, VCAP
could recover the restitution from the party ultimately responsible, the defendant found guilty
and liable to pay it.
29
11 Del. C. § 4101 has acknowledged the power of a court to impose ―a fine, costs, restitution
or all 3‖ upon a convicted person since at least the early 1980s. See 63 Del. Laws ch. 141, § 6
(1981) (amending the statute to include the words ―restitution or all 3‖).
11