Summary
holding that the Superior Court judge's sentence was based upon relevant factors, such as the nature of the crime and the defendant's criminal history
Summary of this case from State v. HoxterOpinion
No. 438, 2003.
Submitted: January 12, 2004.
Decided: March 4, 2004.
Superior Court of the State of Delaware in and for Sussex County, Cr.A. No. 0210012813.
Before HOLLAND, BERGER and STEELE, Justices.
ORDER
This 4th day of March 2004, having considered the contentions set forth in the briefs of the parties on appeal, it appears to the Court that:
(1) The defendant-appellant, Donald L. Dailey ("Dailey"), was charged with nine counts of Rape in the First Degree, without consent, and nine counts of Conspiracy in the First Degree arising out of incidents involving his two sons. On August 6, 2003, Dailey pleaded no contest to three counts of Rape in the Third Degree. At Dailey's request, he was sentenced the next day. Notwithstanding the recommendations of a seven-year sentence by both the prosecutor and defense counsel, the Superior Court judge sentenced Dailey to 35 years, with credit for 289 days. After serving fourteen years incarceration at level V, the balance of the incarceration sentence was to be suspended for 21 years at decreasing levels of supervision.
(2) The factual basis for Dailey's pleas are reflected in the record. According to the statements of his sons and former girlfriend, Deborah BeMiller, BeMiller had sexual intercourse with Dailey's sons, Donald, Jr., age 15, and Jason, age 14, at Dailey's request. She had vaginal and oral intercourse with the two boys. On some occasions, Dailey would watch. On one occasion, BeMiller had oral sex with Dailey while she was having vaginal intercourse with Donald, Jr. There were no allegations that Dailey ever touched his sons in any way.
(3) On September 8, 2003, Dailey timely filed his appeal pro se. This Court directed conflict counsel to perfect the appeal. Dailey has raised only one issue in this direct appeal. Dailey argues that the Superior Court judge abused his discretion in sentencing Dailey outside of the guidelines and joint recommendations of the State and defense counsel, and that the judge exhibited a closed mind.
(4) This Court reviews the sentencing of a criminal defendant pursuant to an abuse of discretion standard. "Appellate review of a sentence generally ends upon determination that the sentence is within the statutory limits prescribed by the legislature." In this case, the minimum possible sentence Dailey could have received for three class B felony offenses was six years and the maximum sentence was sixty years incarceration at Level V. Accordingly, Dailey's sentence fell within the statutory limits. When a sentence is within the statutory limits, "this Court will not find an abuse of discretion unless it is clear that the sentencing judge relied on impermissible factors or exhibited a closed mind."
Walt v. State, 727 A.2d 836, 840 (Del. 1999).
Mayes v. State, 604 A.2d 839, 842 (Del. 1992) (quoting Ward v. State, 567 A.2d 1296, 1297 (Del. 1989)).
See Del. Code Ann. tit. 11 Del. C. § 771, 4205(b)(2).
Weston v. State, 832 A.2d 742, 746 (Del. 2003).
(5) Dailey contends that the sentencing judge both relied on impermissible factors and exhibited a closed mind. Dailey's argument is based upon the following comments that were made by the judge at the time Dailey's sentence was imposed:
This is a nolo case. I have had the opportunity to study the presentence report. The evidence against you is extremely strong, sir. Your two sons have given statements against you. A woman who at one point was close to you has given statements against you, given statements that also incriminates [sic] her and has resulted in her incarceration. It is what I would characterize, in my experience, a strong case involving tragic and bizarre conduct; tragic and bizarre conduct which has resulted in the incarceration of your co-defendant. And you never know why people do things, I don't think, but your children, from all counts, those two boys, have been significantly and negatively impacted by your behavior.
In 1993, you were involved in a conviction involving a 15-year-old. My recollection is that you did not take responsibility for that and said you were framed. At your hands, there are now three juveniles, as they have gown older, but three juveniles have been abused by your conduct. There are aggravating factors. I pulled this thing out and went through it pretty thoroughly. This is an offense against a child. This is a prior violent criminal conduct of a similar nature in that it is violent conduct against a child. You do not have to be the one that touched your boys. You got your kicks from having something weird done with your boys and girlfriend. These are B felonies with a range of two to 20 years each. Two years must be a given. The guidelines range from two to ten years. These are pretty wide guidelines.
I have taken into consideration and thought long and hard about the recommendations that have been made, because I consider those recommendations very weighty, coming from both the State and the defense in the negotiation process. But in this case, I cannot follow the recommendation, Mr. Dailey, because my concern is that people who are involved in unusual, or I will say unusual sex with others, and those others are minors that are unable to consent, if you have done it once, you will probably do it again. If you have done it twice, the likelihood and probability goes much, much higher.
Part of my responsibility, since these are violent crimes, is to protect the community from sexual predators, and I think you are a sexual predator. You go about it in a different way.
(6) The record reflects that, rather than exhibiting a closed mind, the Superior Court judge carefully considered the record, the presentence report and the parties' recommendations in determining the sentence to be imposed. There is no basis in the record to support Dailey's assertion that the sentence imposed by the trial judge was "based on preconceived bias without consideration of the nature of the offense or character of the defendant."
Ellerbe v. State, 2000 WL 949625, *1 (Del. May 11, 2000) (ORDER).
(7) The record also does not support Dailey's assertion that the judge considered an improper factor in sentencing Dailey. Dailey argues that there was no evidence to support the sentencing judge's characterization of Dailey as a "sexual predator." The Superior Court judge's reference to Dailey as a "sexual predator" was based upon the nature of the crimes for which Dailey was being sentenced and Dailey's criminal record. Those circumstances were proper factors to consider.
Id.
NOW, THEREFORE, IT IS HEREBY ORDERED that the judgments of the Superior Court be, and the same hereby is, AFFIRMED.