IN THE SUPERIOR COURT OF THE STATE OF DELAWARE

STATE OF DELAWARE, )
)
v. ) Def. I.D.: 1508012447

)

COTY EDGAR, )
)

Defendant. )

MEMORANDUM OPINION

 

Submitted: Septernber 16, 2016
Decided: October 21, 2016

Defendant ’s Motion to Exclude

Prior Convictionfor Purposes OfEnhanced Sentencing.
GRANTED.

Michael B. DegliObizzi, Esquire, Departrnent of Justice, Wilmington, Delaware.
Attorney for the State of Delaware.

Allison S.- Mielke, Esquire, Wilmington, Delaware. Attorney for Defendant Coty
Edgar.

BUTLER, J.

FACTS AND PROCEDURAL HISTORY

In August, 2015, Mr. Edgar, a twice convicted felon, was living in the City
of Wilmington with a girlfriend. According to the testimony at trial, he was
spotted driving a car that had a license plate that was not fully visible. He was
pulled over for this traffic violation when the officers noted a “strong odor, known
through training and experience to be the odor of fresh marijuana.” Although that
is the last re-erence to 1-_arijuana in the recordl this odor was enough to provoke
the officers to ask for Mr. Edgar’s permission to search the vehicle. Mr. Edgar
consented and he and his passenger alighted, whereupon a search of the vehicle
ensued.

In the trunk of the vehicle, police located a plastic shopping bag. Inside said
bag was a black case containing a black firearm and 3 magazines The gun was
brand new, a receipt showing that it had been purchased just a few days earlier by
Edgar’s girlfriend lt was unloaded, in the trunk. To those who may wonder how a
gun in the trunk that cannot be accessed from the driver’s seat can qualify as
“possession,” Mr. Edgar told an officer that “although the firearm belongs to his
girlfriend, he took same from their apartment and put it into the trunk of the

vehicle prior to coming in contact with us.” Mr. Edgar’s admission thus supplied

the evidence that was lacking as to his possession of the firearm.

 

' lt does not appear that any marijuana - fresh or otherwise - was located in the vehicle.

l

Mr. Edgar was tried and convicted of possession of a firearm by a person
prohibited The issue now concerns his prior record for “violent felonies,” as that
calculus directly impacts the length of his inevitable, statutorily mandated prison
term. At this point, we would do well to understand the legal milieu confronting
Coty Edgar in August, 2015. Some chronology is in order.

ANALYSIS

16 W!iat is a Violent Felony?

The term “violent felony” traces its bloodline to the 1996 amendments to the
habitual offender law, specifically ll Del. C. §4214(a). Historically, fourth time
felony defendants subject to subsection “A” of the habitual offender law could
receive any discretionary penalty the Court chose to impose from probation to a
life sentence. With the 1996 amendments, the habitual offender law began
mandating the statutory maximum penalty on 4th conviction felony offenders guilty
of committing a “violent felony.” ln other words, statutory maximum sentences
became mandatory minimums for fourth time felons.

So the term “violent felony” suddenly became significant and needed a
definition. The class of offenders subject to mandatory maximum sentences under
the habitual offender statute could be widened or shrunk according to what the
Gcncral Assembly classified as a violent felony. The definition was supplied by a

contemporaneous amendment to ll Del. C. §42()1(0).

The General Assembly adopted what can only be described as an expansive
definition of what constituted a violent felony. As passed initially, the term
included extortion, stalking, racketeering, delivery of drug paraphernalia to a
minor, delivery of a non-controlled substance or a non-controlled prescription drug
and possession of drugs within 1000 feet of a school. None of these offenses are
exactly desirable behaviors, but none of them are fundamentally “violent” either.

The effect of the 1996 changes was to greatly expand the number of
defendants circulating through the court system that were subject to mandatory
sentences. Most notable for our purposes here, the term “violent felony” included
the crime of escape after conviction. Mr. Edgar’s record includes a felony assault
in 2007 and an escape after conviction in 2009. This latter charge arose from
defendant’s 3 day unauthorized leave from the Plummer Center.

A “violent felony” is merely definitional - it does not criminalize any
behavior. Edgar’s crime before the Court now is possession of a firearm by a
prohibited person. He is not a fourth time felon and not subject to habitual
offender sentencing But like the habitual offender statute, the person prohibited
statute has received its own legislative makeover that greatly expanded the

mandatory sentences flowing from a violation of the statute. Again, a brief history

is in order.

2. Interaction of “Violent Felony” and Prohibited Persons

The person prohibited statute sat in relative obscurity until 1994 when the
General Assembly responded to the “Cocaine Wars” then raging by adopting a one
year mandatory sentence for possessing firearms by persons prohibited (which
included drug felons). Then in 2003, the “person prohibited” statute was amended
to boost the mandatory sentence provisions to “1-3~5,” meaning prohibited
-1rearms possessors would receive one year mandatory imprisonment if they had a
single previous conviction for a “violent felony,” three years imprisonment if the
“violent felony” dates within 10 years of the termination of all periods of
confinement resulting from the prior crime and five years imprisonment if the
offender had two prior “violent felony” convictions The definition of the term
“violent felony” in section 1448(e) could be found in the 1996 definitions found in
section 4201(0). For the next 10 years, this was the state of mandatory minimum
laws as they related to felons possessing firearms.

In the wake of the horrific shooting spree in a movie theater in Colorado in
July, 2012 and the senseless murder of 20 school children in Newtown Connecticut

in December, 2012, the General Assembly voted to boost the mandatory term of

imprisonment for felons in possession of firearms under section 1448(e) from “1-3-
5” to “3-5-10.”2

Thus, defendant’s 2007 conviction for Assault 1St degree - a “violent felony”
by anybody’s definition - and his 2009 conviction for Escape After Conviction
makes him a twice convicted “violent felon” within the meaning of “violent felon”
under section 4201(0) and subject to the 10 year mandatory sentence called for by
11 Del. C, §1448(e)(1)(c),

3. “Walk Away” Escapes Removed as a Violent Felony

BUT ~ and here is where it gets a bit tricky - the definitional term “escape
after conviction” in section 4201(0) was revised by the General Assembly in 2015
to “escape after conviction if convicted as a Class C Felony or a Class B Felony.”
Escape After Conviction is a Class D felony unless it is accompanied by the use of
force, a deadly weapon, or someone is injured while on escape status, in which
case it is elevated to a Class B or C felony.3 Effective with the 2015 amendment to
4201(c), characters such as the defendant, who “walk away” from the Plummer
Center may be felons, but not “violent” ones for puiposes of enhanced sentencing

This amendment removing “walk away” escapes from the list of violent felonies

 

2 The connection between deranged mass murderers, with no criminal record at all, killing scores of innocents and
felons putting unloaded handguns in trunks is, well, subtle.

3 11061.€.§1253.

became effective June 15, 2015. Defendant committed this offense on August 16,
2015.

Which brings us to the instant controversy: the State asks the Court to
impose a 10 year minimum mandatory sentence on the defendant because at the
time of his conviction for escape in 2009, it was then considered a “violent
felony.” The State contends that the fact the General Assembly subsequently
amended the statute to remove nonviolen- escapes from the list should not matter.
According to the prosecution, once a defendant commits a “violent felony” at a
time when it was designated a “violent felony,” he is always a “violent felon”
regardless whether the offense comes off the list of violent felonies in section
4201(0).

The prosecution says this is so because of 11 Del. C. §211 -the “Savings
Clause” - that provides that the repeal of a statute shall not have the effect of
“releasing or extinguishing any penalty, forfeiture or liability incurred under such
statute, unless the repealing act shall so expressly provide.” The State would have
the Court impose 10 years of mandatory time on the defendant because once the
defendant was convicted of two felonies considered “violent” at the time of the
conviction, he was subject to the two violent felony enhancement under section

1448(e)(1)(c) and that designation lasts until the end of time; it cannot be changed

even with the repeal of the violent felony designation because of the savings clause
provision.

4. The Savings Clause Does Not “Save” Definitional Sections

Well, hold on here. The defendant in this case committed his “person
prohibited” crime some 2 months after the escape charge, to which he had
previously pled guilty, had been removed from the definition of “violent felony.”
So the offense date in this case caine after the repeal date of the code provision the
prosecution seeks to enforce. If the General Assembly had simply legalized “walk
aways” from the Plummer Center instead of removing “walk away” from the list of
“violent felonies,” there is no question but that Mr. Edgar could not be prosecuted
for walking away 2 months after the repeal of the statute. As we understand the
prosecutor’s position, even though Mr. Edgar could not be prosecuted for a
previously repealed crime, his sentencing could nonetheless be enhanced by virtue
of a prior offense even if the enhancement has been repealed.

Savings clause statutes are enacted because absent such a clause, the default
would be to the common law rule. Under the common law rule, a repeal of a
criminal statute would act to halt any prosecution then ongoing that penalized the

‘ . 4 . . .
behavior. Any “saving” of an ongoing prosecution after a repeal would only occur

 

4 See State v. lsmaaee/, 840 A.2d 644, 649 (Del. Super. 2004), ade, 2004 WL 1587040 (Del. .lune 25, 2005)_
7

if a court could divine a legislative intent to save it from the history or structure of
a bill’s passage.

The purpose of Delaware’s savings clause is not a inystery. As noted in the
synopsis, “The savings clause guards against an unanticipated judicial
interpretation which holds that an amendment of a statute constitutes a repeal.”
1998 Delaware Laws Ch. 263 (H.B. 277).

Section 4201(c) is a de-initional statute, it cannot be enforced by itself and it
works no “penalty, forfeiture or liability;” it simply defines a “violent felony.”
Section 211 saves liability after repeal for any penalty “incurred under such
statute.” But the liability for escape is in the escape statute, not the statute defining
violent felonies. The savings statute does not apply to a definitional section.

Had Mr. Edgar been caught with this firearm in the days before the change
in the definition of violent felony, the prosecutor’s savings clause argument would
have far more currency. lt is all but axiomatic that a savings clause requires courts
to apply the penalties in place at the time the crime was committed5 The

penalties in place at the time this crime was committed did not include a “violent

felony” enhancement

 

5 See State v. Lewl`s, 144 A.3d 1 109 (Del. Supr. August 4, 2016) (“We hold, consistent with decisions interpreting a
similar federal saving statute, that Delaware’s criminal saving statute permits the State to prosecute crimes under a
repealed criminal statute when the crimes were committed before the statute’s repeal.”). See also U/iiled Slales v.

Smnh, 632 F.zd 1043, 1047-49 (8"‘ cir. 201 i).

The possibility that on some day, in an uncertain future, the defendant may
commit a new offense and have his escape conviction counted as a violent felony
regardless whether it is still considered such by the General Assembly at the time
one commits that future crime is at best (or worst) a “collateral consequence” of
the escape charge ~ it is not part of the crime or the punishment for the crime of
escape after conviction.6 lt would seem self-evident that if a consequence of a
conviction is merely “collateral,” then by definition it is not a “penalty, forfeiture
or liability” within the meaning of the savings clause. When viewed as such, there
was nothing to be “saved” by the repeal of the expansive definition of escape. The
“savings clause” analysis offered by the state is not well taken.

The prosecutor’s interpretation of the statute is not only illogical, it is
unprecedented

The prosecution directs us to French v. State,7 for the proposition that the
designation of “violent felon” follows the offender forever. This is a distortion of
what the French Court held

French was charged with possession of a firearm by a person prohibited The

indictment charging him alleged that he was prohibited by virtue of a conviction

 

6 See generally Barkley v. Stale, 724 A.2d 558 (Del. Supr. 1999)(def`ming a “collateral consequence” as one “not
related to the length or nature of the sentence imposed on the basis of the plea.” (citations oinitted)); Kipp v. Slale,
704 A.2d 839 (Del. Supr. 1998)(failure to inform defendant that conviction would prohibit defendant from
possessing firearm in future is merely a collateral consequence).

7 French v. Slale, 38 A.3d 289 (Del. Supr. 2012).

for maintaining a dwelling for keeping drugs ~ a nonviolent felony, but a felony
nonetheless Upon his conviction, the government filed a petition to declare him a
habitual offender pursuant to 11 Del. C. §4214(b), calling for a “mandatory
maximum” penalty available for the crime of violating 11 Del. C. §1448(e) ~ or 8
years in jail.

French argued on appeal that since the predicate felony in his indictment -
maintaining a dwelling - was not a “violent felony,” he could not be sentenced as a
habitual offender on the person prohibited charge as a “violent felony.” But his
record included a separate offense of Escape After Conviction which, at the time,
included all escapes _ walkaways and otherwise. That “violent felony” was
included in the prosecutor’s habitual offender petition. Why is that important?
Because 11 Del. C. §1448 has numerous pathways to being prohibited from
possessing a firearm, only one of which is a prior conviction for a “violent felony.”
ln that one subset of prior felony convictions, if a defendant has a prior conviction
for any violent felony, then a violation of the person prohibited statute, section
1448, is itself a “violent felony” and a defendant is subject to enhanced sentencing
under either section 1448(e) or in French’s case, habitual offender sentencing,
section 4214(b). French’s argued that he could not be sentenced under 4214(b) as

a “violent felony” because the indictment charging a predicate felony was not a

10

violent felony, but he conceded that the escape charge at the time of his appeal was
a violent felony.

No Code provision had been amended or repealed and section 211 was not
implicated in the French decision. The French opinion stands for the proposition
that the government does not need to charge in the indictment the predicate violent
felonies upon which it will rely in later seeking habitual offender sentencing due to
prior violent felony convictions F.rench does not even attempt to answer the
question what happens when the underlying felonies supporting the petition are
declassified as violent felonies by the legislature That issue was not before the
Court.

The prosecution also relies on State v. meick.8 This was a case in which
the defendant, convicted of being a person prohibited, received habitual offender
sentencing based in part on a conviction for possession of drugs within 300 feet of
a park. The possession within a park zone charge was considered a violent felony
under section 4201(0) until September, 2011, about 4 months after he was
convicted of the charge. So Trawick’s argument was not that his sentencing was
being enhanced based upon a statute repealed before he committed the offense. He
argued his sentence was invalidated by the subsequent repeal of the violent felony

designation after his conviction for the charge. The Superior Court rejected the

 

8 State v. Trawick, 2014 WL 5741005 (Del. Super. Oct. 27, 2014).

11

argument, but it is a completely different case from the one presented here. Here,
the statute was repealed before Edgar’s conviction _ indeed, before he even
committed the offense.

Finally, we consider the prosecutor’s proffer of Sommers v. State.9 ln
Sommers, the defendant pled guilty to the person prohibited statute and the
government sought enhanced sentencing under the “1-3-5” provision then required
before the 2013 amendment to the Code boosted the mandatory sentences to “3-5-
10.” The prosecution argued that Sommers had 2 prior violent felonies: a 1993
conviction for vehicular assault 1St degree in 1993 and a 1999 conviction for
Unlawful Sexual Penetration 2d degree. He was thus subject to the 5 year
mandatory provision but argued that the 1993 Vehicular Assault conviction should
not be considered a prior violent felony because the “violent felony” designation
was not applied to vehicular assault 1St degree until 1996.10 The Supreme Court
affirmed Superior Court’s rejection of the argument, ruling that “at the time
Sommers committed the current crime of PFBPP, both of these prior offenses were
included in the list of those violent felonies that could be used to enhance a

sentence for PFBPP.”ll Here, at the time Edgar committed the current crime of

 

9 Sommers v. State, 2010 WL 5342953 (Del. Supr. Dec. 20, 2010).

10 Recall that 1996 was the first time subsection “c’7 was added to section 4201. This was the first time Delaware
ever classified what crimes would be considered “violent.”

" sommers, 2010 wL 534295, at *i.

12

PFBPP, only the Assault 1St degree was included in the list of those violent felonies
that could be used to enhance a sentence for PFBPP. The Sommers case, rather
than supporting the prosecution position, supports just the opposite.

From this survey, the Court is satisfied that the prosecution is on its own; no
decision it has cited favors its logically dubious position.

CONCLUSION

The law as it stood on August 4, 2015 when defendant committed the
offense for which he was convicted, defined Assault 1St degree as a “crime of
violence” but did not define a nonviolent walkaway from the Plummer Center as a
violent felony. The law as it stood on August 4, 2015 rendered the defendant
subject to sentencing under 11 Del. C. S1448(e)(1)(b) to 5 years of mandatory
time. The Court will impose the sentence subject to these considerations

IT IS SO ORDERED.

  
  

A§="

l-J`udge Charles E. Btitier l/

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