State v. Brown

IN THE SUPERIOR COURT OF THE STATE OF DELAWARE
STATE OF DELAWARE, )
)
v. ) I.D. No. 1908014450
) Cr. A. Nos. IN19-09-0015, etc.
GREGORY BROWN, )
Defendant. )
Submitted: August 20, 2020
Decided: August 20, 2020
Written Order Issued: August 31, 2020
ORDER
Upon the State’s Application to Sentence Defendant Gregory Brown for
Two Separate Violations of 11 Del. C. § 1448 for One Loaded Handgun,
GRANTED.
This 31st day of August, 2020, upon consideration of the State’s Application
to Sentence Defendant Gregory Brown for both Possession of a Firearm by a Person
Prohibited and Possession of Ammunition by a Person Prohibited (D.I. 18, 24, and
26), Brown’s Objections thereto (D.I. 20, 25, and 27), and the record in this matter,
it appears to the Court that:
(1) On February 12, 2020, the Court convicted Gregory Brown at a bench
trial of four counts of a five-count indictment. Two of the charges were for one
count each of possession of a firearm by a person prohibited (PFBPP) 1 and
1
DEL. CODE ANN. tit. 11, § 1448(a)(1)–(c) (2019).
possession of ammunition by a person prohibited (PABPP).2 Both of these charges
related to the possession of a single loaded firearm. Both PFBPP and PABPP are
varieties of Possession of a Deadly Weapon by a Person Prohibited (PDWBPP).3
(2) The sentencing question before the Court—raised sua sponte 4 —is
whether these two separate convictions and separate sentences under the PDWBPP
statute for possession of one loaded firearm contravenes the meaning of the statute.
And, if the statute embraces dual charges for a firearm and for the ammunition
loaded within, whether the statute falls afoul of the Double Jeopardy clauses of the
Delaware and United States Constitutions, each of which declares that no person
shall be “twice put in jeopardy of life or limb.”5
(3) The federal Double Jeopardy Clause contains three protections. First,
“[i]t protects against a second prosecution for the same offense after acquittal.”6
2
Id.
3
Id.
4
Longford-Myers v. State, 2019 WL 2622152, at *3 n.17 (Del. June 27, 2019)(“[W]e think that
it is critical that the parties and sentencing judges, whether in the context of a contested sentencing
or one where the State and defendant have agreed to a sentencing recommendation, take care on
the front end to fashion sentences that are within the bounds of the law and that reflect a reasoned
exercise of discretion within those bounds.”).
5
See U.S. CONST. amend 5 (“nor shall any person be subject for the same offence to be twice
put in jeopardy of life or limb”); DEL. CONST. art. I, § 8 (“no person shall be for the same offense
twice put in jeopardy of life or limb”).
6
North Carolina v. Pearce, 395 U.S. 711, 717 (1969) (citing cases).
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Next, “[i]t protects against a second prosecution for the same offense after
conviction.” 7 And lastly, “it protects against multiple punishments for the same
offense.”8 This third of the Double Jeopardy protections—that against what is called
“multiplicity”—is at issue here.9
(4) The dimensions of the protection against multiplicity are limited.
Convictions are considered multiplicitous when a defendant faces “multiple
punishments for the same offense where [the legislature] has not authorized
cumulative punishment.”10 But cumulative punishments for a single occurrence are
not double jeopardy where the legislature expresses an unambiguous intent for that
single occurrence to accrue such liability.11 Importantly, the bar against multiplicity
7
Id.8
Id.9
Williams v. State, 796 A.2d 1281, 1286 (Del. 2002) (“Multiplicity is the charging of a single
offense in more than one count of an indictment. Dividing one offense into multiple counts . . .
violates the double jeopardy provisions of the constitutions of the State of Delaware and of the
United States.”).
10
United States v. Ogba, 526 F.3d 214, 232-33 (5th Cir. 2008). Federal courts thus view
multiplicitous prosecutions as creating new criminal laws in a judicial setting, an arrogation of
legislative authority in violation of separation of powers. Whalen v. United States, 445 U.S. 684,
689 (1980).
11
State v. Cook, 600 A.2d 352, 356 (Del. 1991) (citing Grady v. Corbin, 495 U.S. 508 (1990)).
A different holding in Grady related to successive-prosecution cases has been overturned, but is
not implicated here and does not upset the Cook decision. United States v. Dixon, 509 U.S. 688,
704 (1993).
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is not a Constitutional prohibition against multiple punishments or convictions from
a single act, but only a requirement that such punishments or convictions derive from
the clear expression of the legislature, whether federal or state.12 In Delaware, the
intent of the legislature is expressed in the plain meaning of an unambiguous
statute.13
(5) Thus, when addressing the multiplicity issue in a given circumstance
“the primary inquiry must be one of statutory construction and whether there exists
clearly expressed legislative intent to impose multiple punishments.”14 Analysis of
a constitutional objection ordinarily first inquires as to whether the statute in fact
raises the constitutional issue alleged, because in Delaware “a constitutional
question will not be decided unless its determination is essential to the disposition
of the case.”15 But because the bounds of the federal Double Jeopardy Clause’s
protection is itself is measured only by a rule of statutory construction, this normal
procedure is inapplicable and the two steps become one.
12
Missouri v. Hunter, 459 U.S. 359, 365–66 (1983) (“With respect to cumulative sentences
imposed in a single trial, the Double Jeopardy Clause does no more than prevent the sentencing
court from prescribing greater punishment than the legislature intended.”).
13
Ross v. State, 990 A.2d 424, 428-29 (Del. 2010); State v. Daniels, 2019 WL 6869071, at *2
(Del. Super. Ct. Nov. 13, 2019).
14
Nance v. State, 903 A.3d 283, 286 (Del. 2006).
15
Downs v. Jacobs, 272 A.2d 706, 708 (Del. 1970) (citing cases).
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(6) Where a constitutional claim is brought under similar clauses present
in both the Delaware and United States Constitutions, the court must “apply a
logical, deductive analytical process” to determine if the Delaware Constitution
affords any protection beyond the Federal one.16 Thus, the Court must necessarily
examine the Constitution of the United States before it can determine if Delaware
protections go further.17 And the Double Jeopardy Clauses in the Delaware and
United States Constitutions appear in “virtually identical” terms,18 so this is just such
a case where examination of the Delaware Constitution must necessarily be the final
step.
(7) Two statutory provisions are non-multiplicitous under the federal
Double Jeopardy Clause and support separate indictments, convictions, and
16
Jones v. State, 745 A.2d 856, 864 (Del. 1999).
17
See State v. Xenidis, 212 A.3d 292, 300–301 (Del. Super. Ct. 2019) (“[W]hile this Court need
not be reluctant, where warranted, to show greater sensitivity to Delawareans’ individual rights
under our Constitution than the United States Supreme Court accords to their rights under the
Federal Constitution. . . the question of state constitutional adjudication is not whether this Court
may interpret our constitution differently than the federal constitution, the issue is whether we
must.”) (internal quotation, alteration, and italics omitted). The United States Supreme Court
would prefer that states address their own constitutions first so that its own review does not amount
to an advisory opinion. Michigan v. Long, 463 U.S. 1032, 1040 (1983) (citing Herb v. Pitcairn,
324 U.S. 117, 125 (1945)). But, Delaware has eschewed that suggested procedural rule. E.g.
Jones, 745 A.2d at 860-65; Sanders v. State, 585 A.2d 117, 144-45 (Del. 1990); Van Arsdall v.
State, 524 A.2d 3, 6 (Del. 1987).
18
Tarr v. State, 486 A.2d 672, 673 n.1 (Del. 1984). The Fifth Amendment’s Double Jeopardy
Clause applies to the states via incorporation through the Fourteenth Amendment. Benton v.
Maryland, 395 U.S. 784, 794 (1969) (overturning Palko v. Connecticut, 302 U.S. 319 (1937)).
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punishments where “each provision requires proof of a fact which the other does
not.” 19 Multiplicity is avoided if the charges each possess a factual element
susceptible to proof failing to satisfy the other, even if in a particular case a single
act accomplishes both.20
(8) The prohibitory clause of PDWBPP reads: “Any prohibited person as
set forth in subsection (a) of this section who knowingly possesses, purchases, owns
or controls a deadly weapon or ammunition for a firearm while so prohibited shall
be guilty of possession of a deadly weapon or ammunition for a firearm by a person
prohibited.”21
(9) “A conviction for PFBPP requires proof that a defendant was a
prohibited person and knowingly possessed a firearm” while “a conviction for
PABPP requires proof that a defendant was a prohibited person and knowingly
possessed firearm ammunition.”22
19
Nance, 903 A.2d at 286 (citing Blockburger v. United States, 284 U.S. 299, 304 (1932)).
20
See United States v. Reed, 639 F.2d 896, 905 (2d Cir. 1981) (“[I]t was not improper for the
Government to charge that a single act violated both the general mail fraud statute and various
fraud provisions of the securities law involving use of the mails. . . the same transaction may
violate two distinct provisions of the same statute or different statutes and be punishable under
both as separate substantive crimes.”) (quoting United States v. Van Allen, 28 F.R.D. 329, 343
(S.D.N.Y. 1961)).
21
DEL. CODE ANN. tit. 11, § 1448(b) (2019).
22
Crosby–Avant v. State, 2018 WL 2427595, at *4 (Del. May 29, 2018).
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(10) These factual elements are entirely distinct. “[A] firearm need not be
loaded or operable to sustain a conviction for Possession of a Deadly Weapon by a
Person Prohibited.”23 And a defendant can be convicted of PABPP without any
allegation that he was ever in possession of a firearm.24 Though PFBPP and PABPP
can be completed with a single act of handling a loaded firearm, 25 they are
objectively susceptible to independent commission and proof.
(11) Nevertheless, when the State seeks to punish a defendant for more than
one count of violating a single statutory prohibition26 the Court must still consider
the issue of whether the defendant committed “one as opposed to two discrete
violations of the same statute.”27
23
Buchanan v. State, 981 A.2d 1098, 1104 n.40 (Del. 2009) (quoting Corbin v. State, 1991 WL
316965, at *4 (Del. Dec. 10, 1991), clarified and modified on other grounds, 1992 WL 404289(Del. Feb. 19, 1992)).
24
See Wingfield v. State, 2012 WL 4878864, at *2 (Del. Oct. 15, 2012) (sustaining a jury’s
conviction for PABPP based on evidence that five rounds of ammunition and the defendant’s
business card were found on a desk at which he habitually sat at his place of work).
25
E.g. Crosby–Avant, 2018 WL 2427595, at *4.
26
And PABPP and PFBPP are subspecies of PDWBPP, triggered by the same subparagraph,
§1448(b).
27
Williams v. State, 796 A.2d at 1285 n.17 (citing and adding italics to United States v. Forman,
180 F.3d 766, 769 (6th Cir. 1999)).
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(12) Here, too, the Delaware Supreme Court has effectively decided the
issue. When specifically addressing multiplicity under PDWBPP, it determined28
that the statute contemplates separate counts of PFBPP for each firearm and an
additional PABPP count for ammunition.29 In that case, some of the ammunition
was not loaded into any of the firearms. 30 To distinguish Brown’s case would
require imposing lesser criminal liability on a prohibited person for possessing
ammunition and a firearm if the ammunition is loaded versus loose. Such a strange
interpretation runs counter to the purpose of the statute, which is to protect society
from gun violence from “previously-convicted violent felons and drug dealers by
increasing the punishment for their illegal possession of a firearm.” 31 A loaded
weapon is necessarily a more imminent danger than an unloaded one.
28
See Evans v. State, 872 A.2d 539, 549 (Del. 2005) (“[O]nly the Delaware judiciary has the
power, ‘province and duty. . . to say what the law is’ in particular cases and controversies.”)
(quoting, with ellipsis, Marbury v. Madison, 5 U.S. (1 Cranch) 137, 178, 2 L.Ed. 60 (1803)).
29
See Buchanan v. State, 2011 WL 3452148, at *4 (Del. Aug. 8, 2011) (denying postconviction
relief on multiplicity grounds for a multiple-count conviction because he “was found in possession
of two different handguns as well as ammunition for one of the guns. Each handgun and the
ammunition constituted a different offense.”).
30
See Buchanan, 981 A.2d at 1100 (Del. 2009) (noting on direct appeal that the seized weapons
and ammunition were a “.45 caliber semi-automatic pistol, a .22 caliber pistol, a loaded magazine
for the .45 in the original manufacturer’s wrapping, and additional ammunition for the .45”).
31
Ross, 990 A.2d at 431.
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(13) Because the federal Double Jeopardy Clause operates on this case
solely as to statutory interpretation, that holding of the Delaware Supreme Court
forecloses relief on statutory grounds or from the United States Constitution. What
remains to Brown is to justify some additional protection from the Delaware Double
Jeopardy Clause.
(14) Brown asks the Court to adopt the reasoning from federal courts’
interpretation of a federal statute prohibiting certain categories of people 32 from
possessing firearms. In that statute, the persons prohibited are forbidden to “ship or
transport in interstate or foreign commerce, or possess in or affecting commerce, any
firearm or ammunition; or to receive any firearm or ammunition which has been
shipped or transported in interstate or foreign commerce.”33
(15) Federal courts hold that “simultaneous receipt of more than one weapon
covered by [the statute] supports conviction for only one offense”34 thereunder. But
this is a matter of statutory interpretation—not of constitutional compulsion.
32
See 18 U.S.C. § 922(g) (enumerating categories of persons prohibited). Note that the federal
categories differ from the Delaware ones in fairly significant ways. For instance, the federal
categories include most persons present on nonimmigrant visas (subsection §922(g)(5)(B)), while
the Delaware categories embrace persons under age 21 who were adjudicated delinquent of felony
offenses (Del. Code Ann., tit. 11 § 1448(a)(4)).
33
18 U.S.C. § 922(g).
34
United States v. Frankenberry, 696 F.2d 239, 245 (3d Cir. 1982).
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Because the any in any firearm or ammunition “may be said to fully encompass (i.e.,
not necessarily exclude any part of) plural activity,” federal courts view it as
ambiguous and so, consistent with the federal Double Jeopardy Clause and rule of
lenity, construe it strictly in the federal defendant’s favor. 35 In turn, under that
federal statute, simultaneous possession of a firearm and ammunition is a single
offense.36 Because, under that federal statute, “the allowable unit of prosecution. . .
is the incident of possession.”37 Hence, under that federal statute, charging of and
sentencing for multiple counts requires an additional showing, i.e., that the
prohibited items were “acquired at different times or stored in separate places.”38
(16) This relates how the federal judiciary interprets a particular federal
statute. It provides no basis from which this Court could construct a state
constitutional protection from the Delaware Double Jeopardy Clause to operate more
expansively than its federal equivalent.39
35
United States v. Marino, 682 F.2d 449, 454 n.5 (3d Cir. 1982) (quoting United States v. Kinsley,
518 F.2d 665, 667 (8th Cir. 1975)).
36
United States v. Tann, 577 F.3d 533, 537 (3d Cir. 2009).
37
Id. at 537.
38
United States v. Keen, 104 F.3d 1111, 1118 n.11 (9th Cir. 1996).
39
See, e.g., Jones v. State, 2016 WL 2929109, at *2 (Del. May 16, 2016) (because the troubling
language at issue in the federal armed-career-criminal statute did not appear in Delaware’s habitual
offender statute the federal courts’ holdings that a provision of the federal statute was
unconstitutionally vague did not apply under Delaware law); Priest v. State, 2015 WL 7424860,
at *1 (Del. Nov. 20, 2015) (rejecting defendant’s reliance on federal court decision to argue that
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(17) For this reason, the Court is compelled to GRANT the State’s Motion
and consider PFBPP and PABPP as separate offenses for sentencing purposes.
IT IS SO ORDERED.
/s/ Paul R. Wallace
__________________________
Paul R. Wallace, Judge
Original to Prothonotary
cc: William L. Raisis, Deputy Attorney General
John S. Edinger, Jr., Esquire
his sentence was illegal because he was sentenced under Delaware state statute, not the invalidated
clause of the federal Armed Career Criminal Act).
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