IN THE SUPERIOR COURT OF THE STATE OF DELAWARE

STATE OF DELAWARE, )
)
v. ) ID No. 0305000877
)
EDWARD M. LEWIS, ) Cr. A. Nos. IK03-05-0553, etc.
Defendant. )

Submitted: May 23, 2018
Decided: August 28, 2018

(BD_ER.
Upon Defendant Edward M Lewl`s ’s Requestfor a Certifz`cate of El igl`bility
to Fl'le Under ]] Del. C. § 4214@ and Del. Super. Ct. Spec. R. 2017-I(d),
DENIED.
This 28th day of August, 2018, upon consideration of the Defendant Edward
M. Lewis’s Request for a Certiflcate of Eligibility (D.I. 64), the Attorney General’s
response thereto (D.I. 66), the parties’ supplemental submission and exhibits, and
the record in this matter, it appears to the Court that:
(1) Gn March 30, 2004, a Superior Court Jury convicted Edward M. Lewis
ofPossession of a Deadly Weapon During the Comrnission of a Felony (PDWDCF),

Aggravated Menacing, Assault in the Third Degree, Disorderly Conduct, Reckless

Endangering in the Second Degree, and Endangering the Welfare of a Child.l His

 

l DEL. CODE ANN. tit. 11, § 1447 (2002) (PDWDCF); ia'. at § 602(b) (aggravated menacing);
ia'. at § 611 (assault third degree); id. at tit. 11, § 1301 (disorderly conduct); ia'. at § 603 (reckless
endangering second degree); and id. at § 1102 (endangering the Welfare of a child).

sentencing occurred a few months later, on June 27, 2004, after a pre-sentence
investigative report was prepared and the State filed a habitual criminal petition.2
Lewis was sentenced to the minimum required for the triggering PDWDCF
conviction (IK03-05-0553) for which the State sought habitual criminal sentencing
under the then-extant Habitual Criminal Act: 20 years at Level V.3 For all of the
other counts, he received an additional aggregate of four years and 30 days
imprisonment that was suspended in whole for probation.4 Lewis’ s sentencing order
notes that his habitual criminal sentence was effective on January 9, 2004.5

(2) Lewis has requested a certificate of eligibility to file a petition seeking

exercise of the Court’s jurisdiction to modify his sentence under

 

2 DEL. CODE ANN. tit. 11, § 4214(a) (2002) (providing that a person who had been thrice
previously convicted of a felony and was thereafter convicted of another felony could be declared
a habitual criminal; the Court could then, in its discretion, impose a sentence of up to life
imprisonment for that or any subsequent felony).

3 Ia'. (any person sentenced under then-existing § 4214(a) had to receive a minimum sentence
of not less than the statutory maximum penalty otherwise provided for any fourth or subsequent
Title 1 1 violent felony that formed the basis of the State’s habitual criminal petition); DEL. CODE
ANN. tit. 11, §§ 1447, 4201(c) and 4205(b)(2) (2002) (PDWDCF was, when LeWis committed his
crimes, a class B violent felony with a statutory maximum of twenty years imprisonment).

4 Sentencing Order, State v. Edward M. Lewis, lD No. 0305000877 (Del. Super. Ct. July 27,
2004). Before he was sentenced, the Court had granted Lewis motion for judgment of acquittal on
the child endangering count. D.I. 22.

5 Id.

11 Del. C. § 4214(f).6 The Attorney General responded.7 And the Court has since
heard argument, conducted an evidentiary hearing,8 and received supplemental
documentary evidence9 to determine the extent of Lewis’s prior felony record and
its effect on his present eligibility to seek § 4214(f) relief. The Court has carefully
considered the parties’ positions as to whether Lewis can be granted a certificate of
eligibility under the unwonted factual and procedural circumstance presented. He

cannot.

- Under § 4214(f), an Inmate Must Meet Both the
Tvpe-of-Sentence and Time-Served Requirements.

(3) lt appears that Lewis does meet the type-of-sentence eligibility
requirement set forth in 11 Del. C. § 4214(f).'0 But the Court finds that Lewis does

not meet the time-served eligibility requirement set forth in 11 Del. C. § 4214(f).

 

6 D.I. 39; Del. Super. Ct. Spec. R. 2017-1(c)(2), (3).

7 D.I. 66; Del. Super. Ct. Spec. R. 2017-1(0)(5) (providing that the Attomey General shall
file a written response to a request for certificate of eligibility).

8 Del. Super. Ct. Spec. R. 2017-1(c)(6) (the Court is permitted to act on such a request
“without presentation, hearing, or argument unless otherwise ordered by the court”).

9 See D.I. 68; D.I. 71; D.I. 72; D.l. 74; D.I. 78; and D.I. 81.

'0 DEL. CODE ANN. tit. 11, § 4214(f) (2018) (providing that an inmate must be serving a
sentence imposed upon him as “an habitual criminal [that is] a minimum sentence of not less than
the statutory maximum penalty for a violent felony pursuant to 4214(a) of this title, or a life
sentence pursuant to 4214(b) of this title prior to July 19, 2016”). See Clark v. State, 2018 WL
1956298, at *3 (Del. Apr. 24, 2018) (“a minimum sentence of not less than the statutory maximum
penalty for a violent felony” means the inmate must have received the minimum sentence a judge
was constrained to impose under the prior version of the Habitual Criminal Act, and so, where a
sentencing judge exercised his or her discretion to impose greater than the minimum required

_3_

(5) Under § 4217(f), an inmate meets the time-served eligibility
requirement when he “has served a sentence of incarceration equal to any applicable
mandatory sentence otherwise required by [the new provisions of 11 Del. C. § 4214]
or the statutes describing said offense or offenses [for which the inmate was
sentenced], whichever is greater.”'l Most of`ten, that requires the Court to determine
where in the new habitual criminal sentencing regime a potential § 4214(f`) petitioner
would fall. And, most often, that is done easily enough by reviewing the State’s
original habitual criminal petition and determining which new habitual criminal
enhancement provision would be applicable to the inmate’s sentence if he were to
be sentenced today.12 Occasionally, however, because statutory tiering under the
revised Habitual Criminal Act is based on considerations such as whether a predicate
felony conviction was for a Title 11 violent felony-something that was of no
moment to the State when filing, nor the Court when granting a habitual criminal
petition under the old law-the Court must, as it did here, conduct a more searching

inquiry into the inmate’s conviction history.

 

under pre-2016 § 4214(a), the inmate cannot seek modification under § 4217(D); Durham v. State,
2018 WL 2069057, at * 1 (Del. May 2, 2018) (same); State v. Williams, 2018 WL 293 83 13, at *2
(Del. Super. Ct. June 8, 2018) (same).

'] DEL. CODE ANN. tit. 11, § 4214(t) (2018).

12 See Del. Super. Ct. Spec. R. 2017-1(0)(6) (the Court can determine § 4214(f) eligibility on
the papers alone).

_4_

(6) To do so in this case, the Court had to conduct a hearing equivalent to
that required under section 4215(b) of Title 11 “solely to determine the factual
existence of prior convictions which will justify enhanced punishment” under the
Habitual Criminal Act.13 And to do so, the Court has employed the standards for,
and made its findings consistent with, those required to determine habitual
criminality in the first instance.14

(7) The Court finds that prior to the triggering PDWDCF conviction (IK03-
05-0553) for which the State sought (and still seeks) habitual criminal sentencing,
Lewis had accrued at least the following felony convictions that would be used to
derive his habitual criminal status: Burglary in the Second Degree (IK79-01-003 7);
Conspiracy in the Second Degree (PK94-06-0168); Possession of a Deadly Weapon
by a Person Prohibited (PK94-01-0180); and Carrying a Concealed Deadly Weapon

(lK96-05-0298). Lewis’s prior conviction for Burglary in the Second Degree (IK79-

 

13 Key v. State, 463 A.2d 633, 639 (Del. 1983).

'4 See, e.g., id. (“[i]t is now axiomatic that habitual criminality is a status, not a criminal
offense”; and so, a § 4215(b) hearing is a mere evidentiary hearing as opposed to a full trial). See
also Bailey v. State, 450 A.2d 400, 404 (Del. 1982) (habitual criminal sentencing and proceedings
statutes contemplate a separate hearing conducted prior to sentencing to determine a defendant’s
status as a habitual criminal); Morales v. State, 696 A.2d 390, 395 (Del. 1997) (at that hearing a
prior conviction must be shown beyond a reasonable doubt to be a specific felony and/or felony
type for purposes of 11 Del. C. § 4214); Buckingham v. State, 482 A.2d 327, 330-31 (Del. 1984)
(and prior convictions must be “separate convictions . . . each successive to the other, with some
chance for rehabilitation after each sentencing”); Eaddy v. State, 1996 WL 313499, * 2 (Del. May
30, 1996) (but “‘some chance for rehabilitation’ means only that some period of time must have
elapsed between sentencing on an earlier conviction and the commission of the offense resulting
in the later felony conviction”).

_5_

01-0037) and the triggering PDWDCF conviction (IK03-05-0553) were each for a

“Title 11 violent felony.”15

(8) Under current 11 Del. C. § 4214(c), Lewis, who has thrice before been
convicted of felonies_one of which was a Title 11 violent felony-must receive a
minimum sentence of not less than the statutory maximum penalty otherwise
provided for the triggering PDWDCF conviction (lK03-05-0553) that is the Title 1 l
violent felony that formed the basis of the State’s habitual criminal petition.16 Lewis
must, therefore, serve a minimum of 20 years before he could be eligible for

§ 4214(f) consideration.17 He has not yet.18

 

15 DEL. CODE ANN. tit. 11, § 4201(c) (2018) (“The following felonies shall be designated as
violent felonies . . . Title 11, Section . . . 825 Burglary in the Second Degree . . . 1447
Possessing a Deadly Weapon During the Commission of a Felony . . .”).

16 DEL. CODE ANN. tit. 11, § 1447 & 4205(b)(2) (2002) (minimum mandatory sentence for
PDWDCF at the time of Lewis’s crimes was two years at Level V; maximum sentence for
PDWDCF was then 20 years at Level V).

17 That 20-year term may be subject to certain diminution under sections 4205(h), 4381 and
4382 of Title 11. DEL. CODE ANN. tit. 11, § 4205(h) (2018) (Department of Correction may, in its
sole discretion, house Level V inmates in certain Level IV facilities during the last 180 days of the
inmates’ sentences); id. at § 4381 (Eamed good time); and ia'. at § 43 82 (Forfeiture of good time).

18 As noted above, Lewis’ 20-year term began to run on January 9, 2004.

_6_

NOW, THEREFORE, IT IS ORDERED that Defendant Edward M.
Lewis’s Request for a Certificate of Eligibility is DENIED; he may not file a petition
seeking exercise of this Court’s jurisdiction to modify his sentence under 11 Del. C.

§ 4214(f) and Del. Super. Ct. Spec. R. 2017-1(d).

-e/c/
Paul R. Wallace, Judge

Original to Prothonotary - Kent County

cc: Brett A. Hession, Esquire
Stephen R. Welch, Jr., Chief Prosecutor, Kent Co.
Gregory E. Smith, Deputy Attomey General

