Opinion
ID No. 0108020942
Submitted: October 10, 2002
Decided: November 8, 2002 Counsel:
Upon Defendant's Motion to Sentence for Rape in the Fourth Degree — DENIED
Marie O'Connor Graham, Esq., Deputy Attorney General, Department of Justice
Sandra W. Dean, Esq., Office of the Public Defender
Defendant Mark Franklin has been convicted by a jury of three counts of Rape in the Second Degree, 11 Del. C. § 772, involving sexual intercourse with two victims who were 6 and 7 years old. As a matter of law, these victims cannot consent to sexual intercourse. See 11 Del. C. § 761(j). Franklin has moved for a sentence as if he had been convicted of Rape in the Fourth Degree, 11 Del. C. § 770(a)(1). He contends that this offense also applies because the victims are less than 16 years old. He points out that under § 772 he faces a minimum mandatory 30 years in prison for these offenses which he would not face under § 770. He argues the statute is ambiguous and that a rule of lenity should apply.
The State responds that although Franklin could have been prosecuted for Rape in the Fourth Degree, the State chose to prosecute for Rape in the Second Degree. Further, prosecutors may base the charging decision on the penalties available upon conviction.
United States v. Batchelder, 442 U.S. 114, 125 (1979); See Albury v. State, 551 A.2d 53, 61-62 (Del. 1988).
There is no argument of any malicious or discriminatory intent in the prosecution here. Franklin could be lawfully prosecuted for Rape in the Second Degree. Because he has been convicted of that crime, he must be sentenced consistent with that conviction.
This holding is consistent with holdings that have upheld sentences for unlawful sexual intercourse when incest was a charging option available to the State. See e.g., Drake v. State, 2002 WL 200961, at *1 (Del.Supr.); Wilson v. State, 1992 WL 219102, at *2 (Del.Supr.); Murdter v. State, 2001 WL 762859, at *1 (Del.Supr.); In re Carl Haskins, Jr., 1994 WL 10822, at *1 (Del.Supr.); In re Bredbenner, 2001 WL 1381232 (Del.Supr.); Getz v. State, 1994 WL 622022 (Del.Supr.).
Accordingly, Franklin's Motion tor Sentence Defendant for Rape in the Fourth Degree is DENIED.
IT IS SO ORDERED.