            IN THE SUPREME COURT OF THE STATE OF DELAWARE

    GARY W. PLOOF,                             §
                                               §   No. 47, 2018
           Defendant Below,                    §
           Appellant,                          §   Court Below—Superior Court
                                               §   of the State of Delaware
           v.                                  §
                                               §   Cr. ID No. 111003002
    STATE OF DELAWARE,                         §
                                               §
           Plaintiff Below,                    §
           Appellee.                           §

                               Submitted: September 12, 2018
                               Decided:   September 18, 2018

Before VALIHURA, SEITZ and TRAYNOR, Justices.

                                             ORDER

         This 18th day of September, 2018, after consideration of the parties’ briefs,

and the record on appeal, it appears to the Court that:

         Appellant Gary Ploof was convicted in 2003 of first-degree murder and a

lesser firearms charge. Under the then-governing first-degree-murder punishment

scheme—which is codified at 11 Del. C. § 4209 and which provided an option of

either death or life imprisonment without parole—he was sentenced to death. After

this Court held, in Rauf v. State,1 that § 4209’s implementation of the death penalty

is unconstitutional and later held, in Powell v. State,2 that Rauf has retroactive effect,


1
    145 A.3d 430 (Del. 2016) (per curiam).
2
    153 A.3d 69 (Del. 2016 (per curiam).
Ploof’s death sentence was vacated. The Superior Court resentenced him to life in

prison without parole—§ 4209’s alternative sentence for first-degree murder.

      Shortly thereafter, Ploof moved to correct his sentence, asserting that he

should have been resentenced not under § 4209, but under 11 Del. C. § 4205, which

prescribes a punishment of 15 years to life for all Class A felonies other than first-

degree murder.

                         I. The Crime and the Aftermath

      Ploof was a staff sergeant in the U.S. Air Force. He was married, but he had

been having an affair with a colleague he met while working a part-time, off-base

job. Some time after the affair began, he learned that the Air Force was planning to

roll out a new, $100,000 life-insurance benefit for military spouses. Ploof then

hatched a plan to kill his spouse and collect the life insurance benefit.

      Ploof drove his wife to the parking lot of a store, where he shot her in the

head. He tried to frame the killing as a suicide, but the story did not hold up.

      He was convicted at trial of first-degree murder. During the penalty phase, an

advisory jury unanimously found that Ploof had committed the murder for pecuniary

gain—a statutory aggravating factor under § 4209(e)(1)(o). That finding made Ploof

death eligible, and the jury further found that the aggravating factors in Ploof’s case

outweighed the mitigating factors.




                                           2
      The Superior Court agreed with that finding and sentenced Ploof to death. 3

On direct appeal, this Court affirmed. 4

      Over the next decade, Ploof tried a number of times to obtain post-conviction

relief in both state and federal court, with no success. After Rauf and Powell, his

death sentence was vacated, and in 2017, he was resentenced, under § 4209, to a

mandatory term of life without parole. Shortly thereafter, he filed two motions with

the trial court: a new motion for post-conviction relief and a motion to correct his

sentence. The Superior Court denied both. The former motion is the subject of a

separate appeal;5 the latter is the subject of this one.

                       II. Ploof’s Challenges to his Sentence

      Ploof attacks his new sentence on two main grounds. First, he argues that it

was not possible to resentence him to a mandatory term of life without parole under

§ 4209 because he reads Rauf to have struck down the entirety of the statute, not just

its death-penalty-sentencing procedures. Failing that, Ploof argues that imposing a

mandatory punishment of life without parole on all first-degree murders—which is

the effect of § 4209 now that the option of death has been enjoined—violates the

Eighth Amendment.




3
      State v. Ploof, 2003 WL 21999031 (Del. Super. Ct. Aug. 22, 2003).
4
      Ploof v. State, 856 A.2d 539 (Del. 2004).
5
      No. 48, 2018.


                                            3
      We recently rejected, in Zebroski v. State,6 each of Ploof’s arguments. Ploof

recognizes the impact of Zebroski on his appeal, so his briefing is largely dedicated

to relitigating those same arguments. None of them raise any points that we did not

consider and reject in Zebroski.

      NOW, THEREFORE, IT IS ORDERED that the judgment of the Superior

Court is AFFIRMED.

                                       BY THE COURT:



                                       /s/ Gary F. Traynor
                                       Justice




6
      179 A.3d 855 (Del. 2018).


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