The State's motion to dismiss the first appeal is denied because the sentence comes directly within the provisions of Art. IV, Sec. 28 of the Constitution, Del. C. Ann. providing for a right of appeal in all cases where the sentence shall be imprisonment exceeding one month or a fine exceeding $100.00. See State v. Stevens, 3 W.W. Harr. 479, 139 A. 78. If there is merit in the Attorney General's argument that the right of appeal in this instance should be limited to a review of the sentence above and not amount to a trial de novo, such contention is not properly before me at this stage of the proceeding.
It therefore follows that appeal to the Supreme Court from a sentence imposed after a plea of guilty is for the sole purpose of reviewing the propriety of the sentence. State v. Stevens, 3 W.W.Harr. 479, 139 A. 78; Martin v. State, 10 Terry 344, 116 A.2d 685, and State v. Gale, 11 Terry 354, 130 A.2d 786. The situation on appeal from the Supreme Court to this Court is entirely different, for on appeal to the Superior Court from an inferior court the proceeding is by trial de novo, during which all the circumstances of the cause can be inquired into.
It is perhaps more logical to assume that the Constitutional Convention of 1897 in creating a Board of Pardons with authority to make recommendations to the Governor on applications for reprieves, commutations of sentence, and pardons, intended that criminal sentences of the Superior Court not in excess of statutory limits, were not to be reviewed by the Supreme Court. Appeals to the Superior Court from inferior courts and justices of the peace in all cases in which the sentence shall be imprisonment exceeding one month or a fine exceeding one hundred dollars have been held to be limited to the sentence alone after a plea of guilty, State v. Stevens, 3 W.W. Harr. 479, 139 A. 78, and State v. Gale, 11 Terry 354, 130 A.2d 786, construing § 28 of Article 4, Constitution of Delaware. The State, however, while conceding that an appeal such as the present one has never been before this Court, apparently does not question defendant's contention that the language of the constitutional provision here in issue authorizes a review by this Court of an allegedly excessive sentence of the Superior Court. It is then argued that in the case at bar the sentence imposed was extremely light and that ordinarily a sentence will not be revised by an appellate court if it is within the limits fixed by statute,In re Lewis, 11 N.J. 217, 94 A.2d 328, and State v. Benes, 16 N.J. 389, 108 A.2d 846. It is also pointed out that in most jurisdictions where sentences are reviewed on appeal an express constitutional or statutory method for review has been provided, 69 Yale Law Journal 1453.
In other jurisdictions the holding is to the contrary. See Holtman v. Com., 129 Ky. 710, 112 S.W. 851; Weaver v. Kimball, 59 Utah 72, 202 P. 9; State v. Hedges, 67 Kan. 176, 72 P. 528; State v. Stevens, 139 A. 78, (Sup.Ct. Delaware); State v. Stafford, 26 Idaho 381, 143 P. 528. In the case of State v. Eckert, supra, the opinion was by a divided court, and in the dissenting opinion of Judge Parker he quotes from State v. Bringgold, 40 Wn. 12, which holds that an appeal of a criminal case from a justice of the peace court to the superior court vests the superior court with jurisdiction to proceed in the case as if it had originally commenced in that court. That the superior court tries the case de novo, and pronounces such judgment as it deems the facts warrant.
(Italics added) To the same effect see People v. Goldstein, 32 Cal. 432 (1867), Griffith v. State, 36 Ind. 406 (1871), Commonwealth v. Lockwood, 109 Mass. 323 (1872), Warner v. State, 143 N.E. 288 (Ind. 1924), State v. Stevens, 139 A. 78 (Del. 1927); see also 24 C.J.S. § 1563 (1). Finally Smith contends that he was prejudiced because the State's Attorney at the sentencing stage of the trial informed the court as to his prior criminal record.
It has been observed the constitutional provision permitting appeals was inserted for the express purpose of allowing a review of any case where the Judge below had imposed what might be considered an immoderate sentence or when the offense might not be commensurate with the penalty imposed. State v. Stevens, 3 W.W. Harr. 479, 139 A. 78 (Ct. of Gen. Sessions, 1927). In the above stated basic purpose of the constitutional provision may be found the key to the reasonable interpretation of the provision.
On August 18, 1961 he entered a plea of guilty before a Justice of the Peace to such charge, whereupon he was adjudged guilty, sentenced to and paid the minimum fine and costs. Under the provisions of Title 21 Del. C. § 708, any appeal would have had to have been taken within 15 days "from the time of conviction". Defendant did not appeal from that judgment of conviction. If defendant had appealed this court would have been limited to a review of the sentence imposed; it could not consider the merits, State v. Stevens, 3 W.W. Harr. 479, 139 A. 78 (1927); Martin v. State, 10 Terry 344, 116 A.2d 685 (1955) and State v. Gale, 11 Terry 354, 130 A.2d 786 (1957) and compare Short v. State, Del., 181 A.2d 225, decided May 4, 1962 by the Supreme Court. The reasoning underlying these cases is that a plea of guilty is a waiver of all defects except the fact that the Court lacks jurisdiction.
LAYTON, J.: In State v. Waters, 11 Terry 257, 128 A.2d 556, January 7, 1957, I denied the State's motion to dismiss defendant's appeal in a similar case upon the authority of State v. Stevens, 3 W.W. Harr. 479, 139 A. 78, adding by way of a footnote, "If there is merit in the Attorney General's argument that the right of appeal in this instance should be limited to a review of the sentence above and not amount to a trial de novo, such contention is not properly before me at this stage of the proceeding." However, the question is now squarely raised.
For the reasons so well expressed in the Brown case, supra, it is concluded that, in 21 Del. C. § 708, the Legislature used the word "convicted" according to its common, usual and ordinary meaning, i.e., a judicial determination of guilt after an assertion of innocence and not merely a judicial entry of an admission of guilt after a guilty plea. The defendant relies upon State v. Stevens, 3 W.W. Harr. 479, 139 A. 78. In that case, the defendant pleaded guilty in the Municipal Court to a charge of assault and battery and the sentence was a fine of $500 and imprisonment for two years.
Case heard on motion of the State to dismiss that appeal. In opposing the motion the defendant cited State v. Stevens, 3 W. W. Harr. (33 Del.) 479, 139 A. 78. The State, on the other hand, contended that the Stevens Case, if correctly decided, had no application where the right of appeal was not expressly given by article 4, § 30, of the Constitution of 1897, and that though the defendant was given the right of appeal by the statute (section 146, c. 10, vol. 36, Laws of Del.) she had waived that right by pleading guilty to the charge before the Justice.