Opinion
ID No. 0307022074.
Submitted: March 21, 2007.
Decided: May 16, 2007.
UPON CONSIDERATION OF DEFENDANT'S MOTION FOR CORRECTION OF SENTENCE. DENIED.
This 16th day of May, 2007, it appears to the Court that:
1. On February 6, 2004, a jury found Larry Winters ("Winters") guilty of sexual solicitation of a child. He was sentenced to five years at supervision level V, suspended after serving one year for four years at supervision level III. Winters' conviction and sentence were affirmed by the Supreme Court on direct appeal.
DEL. CODE ANN. tit. 11, § 1112A.
See Docket 12, 27, 34.
2. Winters has now filed a motion for correction of sentence pursuant to Super. Ct. Crim. R. 35(a). Winters claims that, under DEL. CODE ANN. tit. 11, § 4333(b)(1) ("Section 4333"), the maximum period of probation that can be imposed upon him is two years. Winters further contends that the two-year maximum probationary period can not be extended under Section 4333(d) because the "predicate factual findings were not made at sentencing." Winters, therefore, requests that his probation be reduced to two years.
See Docket 38.
3. The State responds by arguing that, although Winters is correct that Section 4333(b)(1) would otherwise limit the probationary period to two years, Section 4333(d) permits the Court to extend the two-year probationary limitation associated with the crime of sexual solicitation of a child. That is, if the Court makes a determination on the record that a longer period of probation will reduce the likelihood that a defendant will commit a sexual offense or other violent felony in the future, the two-year probationary limitation can be extended. The State, in this case, is opposed to modifying Winters' sentence because the extended probation will provide him with additional supervision, structure and extend the no-contact with children under 18 provision, which is necessary to protect the community at large.
See Docket 39.
4. The crime of sexual solicitation of a child is considered a "sexual offense" and a "violent felony." Section 4333(b) provides that the "length of any period of probation . . . shall be limited to . . . [t]wo years, for any violent felony[.]" However, Section 4333(d) states that the limitation set forth in subsection (b) shall not apply:
See DEL. CODE ANN. tit. 11, §§ 761(d), 4201(c).
(1) To any sentence imposed for a conviction of any sex offense as defined in § 761 of this title if the sentencing court determines on the record that a longer period of probation or suspension of sentence will reduce the likelihood that the offender will commit a sex offense or other violent offense in the future; [or]
(2) To any sentence imposed for any violent felony in this title as designated by § 4201(c) of this title if the sentencing court determines on the record that public safety will be enhanced by a longer period of probation or suspension of sentence[.]
Therefore, if a defendant is convicted of sexual solicitation of a child, the two-year probationary limitation may be extended if the Court determines on the record that "a longer period of probation . . . will reduce the likelihood that the offender will commit a sex offense or other violent offense in the future[,]" or if "public safety will be enhanced by a longer period of probation or suspension of sentence."
Section 4333(b)(1) (2).
5. In this case, during the sentencing hearing, the Court stated that treatment and therapy for Winters would be fruitless and a waste of time because of his continued denial and unwillingness to accept responsibility for the crime he was convicted of committing. The Court further stated that, without Winters acknowledging any responsibility for his crime, he will continue to pose a serious risk to young children in the community. As such, the Court concluded that a lengthy period of probation would enable authorities to maintain a watchful eye on Winters' future activities. The Court, therefore, complied with Section 4333(d) by determining on the record that a period of probation beyond the two-year maximum would be necessary to ensure the public's safety and reduce the likelihood of Winters committing another sexual offense. Accordingly, Winters' sentence will not be disturbed.
6. Based on the foregoing, Winters' motion for correction of sentence is DENIED.
IT IS SO ORDERED.