Opinion
No. 37, 1999.
Decided: August 25, 1999.
Court Below: Superior Court of the State of Delaware, Plaintiff Below, in and for Sussex County, Cr.A. No. 98-02-0142.
REMANDED.
Unpublished Opinion is below.
SAMUEL HARRIS, Defendant Below, Appellant v. STATE OF DELAWARE, Appellee. No. 37, 1999. Supreme Court of Delaware. Submitted: July 13, 1999. Decided: August 25, 1999.
Court Below: Superior Court of the State of Delaware, Plaintiff Below, in and for Sussex County, Cr.A. No. 98-02-0142.
Before HOLLAND, HARTNETT and BERGER, Justices.
ORDER
This 25th day of August 1999, it appears to the Court that:
1) The defendant-appellant, Samuel Harris ("Harris"), was charged in Sussex County Superior Court with Escape After Conviction. Following a jury trial on November 12, 1998, Harris was found guilty, as charged. The State filed a motion to have Harris declared an habitual offender.
2) Harris was sentenced on January 22, 1999. The following excerpt from the Superior Court record constitutes the entire sentencing proceeding:
THE BAILIFF: Samuel Harris, Your Honor.
THE COURT: All right. Have you had the chance to look at the habitual offender qualifications?
MR. GILL: Yes.
THE COURT: Does your client admit or deny the accuracy of the convictions, the conviction of burglary in the third degree in Kent County, sentenced by Judge Lee; unlawful sexual intercourse in the third degree in Kent County, sentenced by Judge Ridgely; and theft felony in Kent County sentenced by Judge Terry?
MR. GILL: Neither. The defendant stands mute and requests a hearing by strict proof as to any convictions.
THE COURT: I will proceed with sentencing. Is there anything that you want to say?
MR. GILL: No, Your Honor.
THE COURT: Eight years, with credit for time served, under 4024(k). Waive the costs.
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(Whereupon, the proceedings in the above-entitled matter concluded.)
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3) This is Harris' direct appeal to this Court. On September 15, 1997, Harris was serving a Level IV sentence at the Sussex County Work Release Center. For approximately one week prior to this time, Harris had been working with a late-night sanitation crew at the Perdue plant in Georgetown, Delaware. On Monday, September 15, 1997, a sanitation crew supervisor picked up Harris at approximately 9 p.m., and transported him to the plant. At 1:00 a.m. the next morning, the supervisor called the Work Release Center and informed the officer on duty that Harris was no longer on the Perdue premises. That officer attempted to locate Harris by calling the telephone numbers in his file, but was unsuccessful in finding him. On September 16, 1997, another officer from the Work Release Center sought a warrant for Harris's arrest on the charge of escape after conviction. Harris did not return to the Work Release Center or the custody of the Department of Corrections for more than three months.
4) The crime of Escape After Conviction is a Class D Felony. The statutory penalty of incarceration ranges from zero to eight years. The sentencing guidelines provide that, for an escape from a Level IV facility, the penalty should be Level V incarceration for thirty days.
5) The record reflects that Harris was sentenced to be incarcerated at Level V for 96 times the length set forth in the sentencing guidelines. The entire sentence was subject to the restricted confinement of 11 Del. C. § 4204(k). The eight-year term of imprisonment was the minimum term Harris would have been required to serve if he had been declared an habitual offender. See 11 Del. C. § 4214(a).
6) Harris argues that his punishment was excessive and not supported by any evidence in the record. Harris argues that, because no reasons were given for his sentence, and because there were no aggravating circumstances in the record, his sentence is attributable to judicial vindictiveness.
7) This Court has held that in the absence of legislation that vests this Court with jurisdiction to review deviations from the sentencing guidelines, we will not review sentences that exceed the sentencing guidelines but remain within the maximum penalty provided for by statute. Ward v. State, Del. Supr., 567 A.2d 1296 (1989). This Court's Administrative Directive No. 76, however, requires sentencing courts to give reasons for deviations from the sentencing guidelines.
8) Administrative Directive Number 76 implemented the sentencing guidelines and provides that:
2. Any judge who finds a particular sentencing standard inappropriate in a particular case because of the presence of aggravating or mitigating or other relevant factors need not impose a sentence in accordance with the standards but such judge shall set forthwith particularity the reasons for the deviation using the forms provided by the Commission.Siple v. State, Del. Supr., 701 A.2d 79, 82 (1997).
The reason for including that provision in Administrative Directive 76 is this Court's jurisdiction to review criminal sentences that challenge a sentence on the basis of "unconstitutionality; factual predicates which are either false, impermissible, or lack minimum indicia of reliability; judicial vindictiveness, bias, or sentencing with a closed mind." Siple v. State, 701 A.2d at 83.
8) The record in this case precludes proper appellate review of Harris' sentence. If the eight-year sentence was imposed as the statutory minimum penalty for being an habitual offender, Harris was entitled to a hearing. If the eight-year sentence was not intended as part of an habitual offender sentence, the Superior Court was required to set forth its reasons for deviating from the sentencing guidelines with particularity, in accordance with Administrative Directive 76.
NOW, THEREFORE, IT IS HEREBY ORDERED that this matter is remanded to the Superior Court with directions to vacate Harris' sentence and to resentence him in accordance with Administrative Directive 76. Jurisdiction is not retained.
BY THE COURT:
/s/ Randy J. Holland, Justice