State v. Clark

IN THE SUPERIOR COURT OF THE STATE OF DELAWARE
STATE OF DELAWARE, :
: ID No. 1907004115
v. :
:
TYRONE CLARK, :
:
Defendant. :
ORDER
Submitted: January 15, 2021
Decided: January 25, 2021
On this 25th day of January 2021, having considered the application of the
State, the motion of Defendant Tyrone Clark, and the parties’ responses to both, it
appears that:
1. On February 4, 2020, after a five-day trial, a Kent County jury convicted
Mr. Clark of ten felony sexual offenses. It found him guilty of the following: one
count of attempted sexual abuse of a child by a person of trust, authority or
supervision in the first degree, two counts of sexual abuse of a child by a person of
trust, authority or supervision in the first degree, one count of sexual abuse of a child
by a person of trust, authority, or supervision in the second degree, one count of rape
in the second degree, one count of attempted rape in the second degree, two counts
of dangerous crime against a child, one count of rape in the fourth degree, and one
count of unlawful sexual contact in the first degree.
2. Because of logistical concerns caused by the Covid-19 pandemic, Mr.
Clark remains unsentenced one year after his trial. In advance of his sentencing,
both parties submitted detailed written arguments regarding two issues: (1) the
extent that some of these convictions should merge for purposes of sentencing, and
(2) whether the sentencing enhancement of 11 Del. C. § 4205A applies to the guilty
verdicts as to Counts 1 through 5 of the indictment. If the sentencing enhancement
applies to those convictions, then Section 4205A increases the minimum mandatory
sentence for each offense to twenty-five years of incarceration. Applying that
sentence enhancer also increases the upper range for those offenses to life
imprisonment.
3. Mr. Clark argues that eight of the charges the jury convicted him of should
merge into four for purposes of sentencing. As to the merger argument, he argues
that the same elements are included in each pair of convictions and that the jury
found him to have committed only four distinct acts.
4. Mr. Clark also opposes the State’s application for enhanced sentencing
pursuant to 11 Del. C. § 4205A. He disputes applying it to his convictions of Counts
1 through 5. He contends that increasing the penalties for these counts would be
inappropriate because doing so would violate the principles recognized in Apprendi
v New Jersey1 and Alleyne v. United States.2 The holdings in those cases recognize
that any fact that increases the statutory maximum penalty,3 or the minimum
mandatory sentence4 for an offense, with the exception of the fact of a prior
conviction, must first be found by the jury beyond a reasonable doubt. He
emphasizes that although the indictment alleged the necessary age in those five
counts, the Court did not instruct the jury that her age of less than fourteen years was
an element of the offense.
5. With regard to the issue of merger at sentencing, the State concedes that
Mr. Clark’s conviction of Count 6, rape fourth degree, merges into his conviction of
1
Apprendi v. New Jersey, 530 U.S. 466 (2000).
2
Alleyne v. United States, 570 U.S. 99 (2013).
3
Apprendi, 530 U.S. at 490.
4
Alleyne, 570 U.S. at 108.
2
Count 7, dangerous crime against a child. Furthermore, the State concedes that Mr.
Clark’s conviction of Count 8, sexual abuse of a child by a person of trust, authority,
or supervision in the second degree merges into Count 9, dangerous crime against a
child.
6. The parties disagree, however, regarding whether Count 3, attempted rape
in the second degree, merges into Count 1, attempted sexual abuse of a child by a
person of trust, authority, or supervision in the first degree (hereinafter “attempted
sexual abuse first”). They also dispute whether his conviction of Count 4, rape in
the second degree, merges into his conviction of Count 2, sexual abuse of a child by
a person of trust, authority, or supervision in the first degree (hereinafter “sexual
abuse first”).
7. At the outset, Mr. Clark correctly emphasizes that each pair of offenses
include crimes that contain the same elements, with the exceptions of one additional
element that is found in each corresponding offense.5 In such cases, when one
criminal occurrence gives rise to more than one crime, merger may be appropriate.6
In response, the State does not dispute that the charges that allegedly merge arise
from the same occurrence. Accordingly, they would merge for the purposes of
sentencing absent clear legislative intent that the convictions (that arise from the
same criminal acts) carry separate penalties.7
8. The State correctly argues that when the General Assembly created the
offenses of sexual abuse first degree and attempted sexual abuse first degree it
demonstrated its intent to punish those charges separately from any other
convictions. It expressly provided for separate sentences in the statute creating the
5
21 Am. Jur. 2d Criminal Law §21 (Nov. 2020).
6
See Poteat v. State, 840 A.2d 599, 603 (Del. 2003) (recognizing that “[g]enerally, multiple
punishments are ‘not imposed for two offenses arising out of the same occurrence . . . [the
legislature] ordinarily does not intend to punish the same offense under two different statutes.”)
(citation omitted).
7
State v. Cook, 600 A.2d 352, 355 (Del. 1991).
3
offense and in the statute that defines an attempt of that offense.8 Accordingly,
neither rape second degree or attempted rape second degree merge into the two
sexual abuse charges for sentencing purposes.
9. The Court next examines whether there was legally sufficient proof of the
victim’s age to justify applying 11 Del. C. 4205 A(a)’s sentencing enhancer. Mr.
Clark emphasizes that the jury instructions for Counts 1, 2, 3, 4, 5 did not include
the victim’s age as an element of the offense. In relying on the United States
Supreme Court’s decisions in Apprendi and Alleyne, Mr. Clark argues that
increasing the minimum mandatory sentences for Counts 1 through 5 to twenty-five
years each, and increasing the maximum sentences for each to life in prison, requires
that a jury find the victim’s age to be less than fourteen.9 There was no dispute at
trial that the victim was twelve years old and that Mr. Clark acknowledged the fact
on cross-examination. That alone, however, would not trigger the enhancement
absent a jury finding that the victim was less than fourteen years old. The Court’s
decision, however, turns on a different factor. Namely, the enhancer applies in this
case because the jury did find beyond a reasonable doubt that the victim was under
fourteen years of age, albeit in separate counts than the ones at issue. Namely, the
jury instructions in Counts 7 and 9 both included an element requiring the victim to
8
See 11 Del. C. § 778(7) ( providing that nothing contained in the section creating the crime of
sexual abuse of a child by a person of trust, authority, or supervision in the first degree “shall
preclude a separate, charge, conviction, or sentence for any other crime set forth in this title, or in
the Delaware Code.”) (emphasis added). Based on unequivocal direction by the General Assembly
that these charges, involving the same conduct, carry separate sentences, the Court need not
address the State’s separate contention that 11 Del. C. § 3901 (d)’s consecutive sentencing
provision requires separate sentences for the what are the same two criminal acts. Likewise, the
General Assembly provided clear statutory direction that the LIO attempt verdicts returned in
Counts 1 and 3 trigger the enhancer. See 11 Del. C. § 531 (providing that “[a]ttempt to commit a
crime is an offense of the same grade and degree as the most serious offense which the accused is
found guilty of attempting.”).
9
See Alleyne, 570 U.S. at 99 (holding that the Sixth Amendment requirement that a jury find all
elements of a crime beyond a reasonable doubt “applies with equal force to facts increasing the
mandatory minimum [because] a fact triggering a mandatory minimum alters the prescribe range
of sentences to which a criminal defendant is exposed.”).
4
be “less than 14 years of age at the time of the charged offense.” The jury convicted
Mr. Clark of both counts. It follows that the jury found beyond a reasonable doubt
that the victim was under fourteen, thus satisfying Mr. Clark’s Due Process and Sixth
Amendment rights as recognized in Apprendi and Alleyne.
10. Here, the General Assembly directed that upon the State’s application,
the Court “shall sentence defendant convicted of [Counts 1, 2, 3, 4, 5, 7, and 9] to
not less than 25 years up to life imprisonment [if] the victim of the instant offense is
a child less than 14 years of age.”10 Likewise, the General Assembly
correspondingly increased maximum penalty for these enhanced offenses to life
imprisonment.11 Because the jury found beyond a reasonable doubt that the victim
was less than fourteen years old, the Court has no discretion other than to apply the
sentencing enhancement to Counts 1 through 5.
WHEREFORE, for the reasons discussed, the State’s application to apply the
enhanced penalties based upon 11 Del. C. § 4205A (a) is GRANTED. Furthermore,
Defendant Clark’s motion to merge Count 6 into Count 7 and Count 8 into Count 9
is GRANTED. Defendant Clark’s motion to merge Count 3 into Count 1, and Count
4 into Count 2, however, is DENIED.
/s/Jeffrey J Clark
Judge
oc: Prothonotary
sc: Kevin Smith, DAG
James Liguori, Esquire
10
11 Del. C. § 4205A (a) (emphasis added).
11 Id.
5