Opinion
No. IK99-01-001-00.
Submitted: May 12, 2000.
Decided: July 3, 2000.
Upon Consideration of the State's Motion to Declare the Defendant an Habitual Offender GRANTED
Stephen Welch, Esq., Dover, Delaware. Attorney for the State
Lloyd Schmid, Esq., Dover, Delaware. Attorney for Defendant.
ORDER
Upon consideration of the State's motion to declare the defendant an habitual offender, it appears that:
1. On February 29, 2000, a jury found the defendant guilty of Attempted Rape in the Second Degree. In connection with the defendant's sentencing on that offense, the State filed a motion to have the defendant declared an habitual offender under both 11 Del. C. § 4214 (a) and 11 Del. C. § 4214 (b). The State alleges that the defendant has six prior felony convictions which render him an habitual offender. On May 10, 2000, the Court conducted a hearing on the motion. The Court has considered all of the evidence and the arguments of counsel. Further, the Court has careflully compared the arrest report, the Attorney General's records, and the certified court transcript for each offense to ensure that the arrest and conviction properly correspond and that the conviction is, in fact, for a felony as alleged in the motion. Where the certified court transcript does not clearly reflect the exact criminal offense, the Court has referred to the defendants s criminal history record contained in the presentence report for that information.
2. After considering the evidence, the Court finds beyond a reasonable doubt that the defendant was convicted of the following felonies, all in Delaware: (1) Possession of Burglary Tools on December 16, 1985 in Cr.A. No. 85-09-0116; (2) Possession with intent to Deliver Marijuana and Carrying a Concealed Deadly Weapon on July 3, 1989 in Cr.A. Nos. 89-04-0111 and 89-04-0113 respectively; (3) Maintaining a Vehicle for Drugs on May 1, 1991 in Cr.A. No. 90-08-0004; and (4) Trafficking in Cocaine on May 20, 1992 in Cr.A. No. 91-09-0321.
3. Based upon the foregoing convictions, the Court finds that the Attempted Rape Second Degree conviction which is the subject of this criminal proceeding will be at least the fifth felony conviction for this defendant, and that the defendant is, therefore, an habitual offender pursuant to 11 Del. C. § 4214 (a). The Court further finds that the Attempted Rape Second Degree conviction is at least the third conviction for a crime of the type set forth in 11 Del. C. § 4214 (b), the first two being Possession with Intent to Deliver Marijuana and Trafficking in Cocaine. Therefore, the defendant is an habitual offender under that section as well.
4. Since 11 Del. C. § 4214 (b) requires that the Court impose a life sentence where that subsection is applicable, the Court will impose sentence in this criminal action pursuant to 11 Del. C. § 4214 (b).
5. The Court notes that on January 18, 2000 the defendant was found guilty by a jury of Receiving a Stolen Firearm, Carrying a Concealed Deadly Weapon, and Possession of a Firearm by a Person Prohibited in Cr.A. Nos. 99-08-0030, 99-08-0031 and 99-08-0032 respectively. However, since sentence has not been imposed in that case, the Court takes no position on whether that qualifies as a conviction under 11 Del. C. § 4214. Further, since the Court is satisfied that the defendant is an habitual offender under both subsections of § 11 Del. C. § 4214 of Title 11 based upon the foregoing convictions, no finding is made with respect to an Escape after Conviction offense set forth in the motion.
Therefore, the defendant is declared an habitual offender pursuant to both 11 Del. C. § 4214 (a) and 11 Del. C. § 4214 (b). The defendant will be sentenced pursuant to 11 Del. C. § 4214 (b).
IT IS SO ORDERED.