State v. Smith

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