           IN THE SUPERIOR COURT OF THE STATE OF DELAWARE



STATE OF DELAWARE,                        :
                                          :     ID No. 1512011620
                                          :     In and for Kent County
                                          :
      v.                                  :
                                          :
DANIEL A. HILL,                           :
                                          :
              Defendant.                  :
                                          :

                                       ORDER


      On this 16th day of May 2016, having considered Defendant Daniel Hill’s
(hereinafter “Hill’s”) Motion to Dismiss and the State of Delaware’s (hereinafter
“State’s”) response it appears that:
      1. The State charged Hill with three counts of Sexual Solicitation of a Child and
five counts of Obscenity Material Provided to a Person less than Eighteen Years of
Age. Defendant was arrested for these offenses on December 16, 2015.
      2. On May 10, 2016, Hill filed a motion to dismiss the charges because 150
days had passed since the date of his arrest. Hill asserts that the charges should be
dismissed with prejudice because the State’s failure to indict him (1) violates his
Speedy Trial rights guaranteed by the Sixth Amendment to the United States
Constitution, and (2) independently warrants dismissal pursuant to Delaware Superior
Court Criminal Rule 48(b).
      3. The State candidly responds that the matter at issue was jointly investigated
by the U.S. Attorney’s Office and the Delaware Department of Justice. The State
admits it has not indicted Hill to date because it was told Hill would be federally
indicted for the conduct. While the State charges are serious, the alleged federal crimes
at issue would involve potential life imprisonment. The State indicated it now intends
to indict Hill for the state charges in June. The present motion is Hill’s first assertion
of his Speedy Trial rights.
      4. This case involves pre-indictment delay. Relevant to this motion, there are
three grounds for potential dismissal of charges based on a delay in bringing a
defendant to trial. First, for claims involving pre-indictment delay, courts conduct a
Due Process analysis.1 To establish that pre-indictment delay amounts to a violation
of Due Process a Defendant must show that her or she: (1) suffered actual prejudice
from the delay, and (2) that the delay was intentional for the purposes of gaining a
prosecutorial advantage.2 The criminal statute of limitations applicable to charges
typically permits an indictment at any time before the expiration of that time frame. For
that reason, typically egregious conduct by the State is a prerequisite to dismissal of
charges on that basis. The second, broader basis for dismissal of charges for delay
involves the Speedy Trial analysis required by the Sixth Amendment. The four factors
to be evaluated regarding Speedy Trial challenges include (1) the length of the delay;
(2) the reason for the delay; (3), the defendant’s assertion of a right to a speedy trial;
and (4) prejudice to the Defendant.3 The last, and broadest basis for dismissal on the
basis of delay is for failure to prosecute pursuant to Superior Court Criminal Rule
48(b). While some courts have bled all four Barker v. Wingo factors into Rule 48(b)


      1
          U.S. v. Marion, 404 U.S. 307, 324 (1977).
      2
          Id.
      3
          Barker v. Wingo, 407 U.S. 514, 530 (1972).

                                               2
analyses, the standard for dismissal pursuant to Rule 48(b) requires that there be a
sufficiently long unnecessary delay, and that the defendant suffer prejudice as a result.4
Delaware courts have consistently applied the three factors used to evaluate prejudice
in Sixth Amendment analysis to the prejudice requirement for Rule 48(b) dismissals.5
       5. Here, Hill has been incarcerated for 150 days as of the time of the
presentation of the motion. That certainly involves a level of prejudice.                    After
considering the State’s position, the Court does not find (nor did Hill argue) that the
State’s conduct in any way constituted an intentional manipulation of the prosecutorial
process. Accordingly, dismissal is not warranted based upon pre-indictment delay on
Due Process grounds.
       6. As to the Speedy Trial analysis, analysis of the Barker v. Wingo factors is not
appropriate before the length of delay reaches the level of presumptive prejudice.6
Courts generally set that point at a year, post-arrest or indictment, whichever was
earlier7. Delaware Courts often cite one year as the proper benchmark8, although as
Hill emphasizes, in the context of a situation involving an incarcerated Defendant the
Delaware Supreme Court has found the level of presumptive prejudice to be as low as



       4
           State v. Jarman, 1991 WL 302614, at *1. (Del. Dec. 13, 1991).
       5
          Prejudice is to be evaluated in the following three categories for both Sixth Amendment
Speedy Trial challenges and motions to dismiss for failure to prosecute pursuant to Superior Court
Criminal Rule 48(b) : (1) oppressive pretrial incarceration, (2) anxiety and concern of the accused,
and (3) impairment of the defense. Id. at *3.
       6
           Middlebrook v. State, 802 A.2d 268, 273 (Del. 2002) (citation omitted).
       7
         State v. Strzalkowski, 2010 WL 2961519, at * 4 (Del. Super. July 28, 2010)(citing Doggett
v. United States, 505 U.S. 647, 652 n. 1 (1992)).
       8
           Id.

                                                 3
234 days.9 Hill further argues that although the case at hand has not yet reached that
level, it will be highly unlikely to conclude the case short of 234 days from the date of
arrest and incarceration. While that could be the case, the Court concludes that Sixth
Amendment Speedy trial analysis is not yet triggered. Based on what is a significant
delay to date, Hill’s claim regarding dismissal pursuant to Sixth Amendment Speedy
Trial guarantees is denied without prejudice to refile (1) absent a June indictment or (2)
absent the State’s ability to ultimately provide Defendant with a timely trial. At this
juncture, Hill has assertively marked his request for a speedy trial for purposes of his
Sixth Amendment rights.
      7. The Rule 48(b) aspect of the motion is a closer case. Dismissal is warranted
by the Court, if “there is unnecessary delay in presenting the charge to a grand jury .
. .” 10 There is no question that the delay to date has been attributable to the State and
is unnecessary.       Namely, the State who cooperated with the U.S. Government
regarding investigation of the charges, believed prior to the time of the filing of the
motion that the U.S. Government had charged Hill for his conduct. Accordingly, the
State had not sought an indictment of Hill at the state level. The State indicated at the
motion hearing that it now intends to seek an indictment of Hill at the next meeting of
the Grand Jury in three weeks. Consequently, at that point, Hill will have been
arrested but not yet indicted on these charges for approximately 165 days.
      8. Hill did not articulate meaningful concrete prejudice to his defense based on
the delay, or prejudice other than the obvious stigma involved with charges alleging
misconduct against children. However, oppressive pretrial incarceration is one of the


      9
          Id.
      10
           Super Ct. Crim. R. 48(b).

                                            4
three types of prejudice examined under Rule 48(b). The delay in presenting this
matter to a grand jury is rapidly nearing such level. Hill has been incarcerated since his
December 2015 arrest. At this immediate juncture, the Court does not find that
dismissal is warranted pursuant to Rule 48(b). The motion on Rule 48(b) grounds will
accordingly also be denied without prejudice to be reconsidered upon motion in the
event Hill remains unindicted or if his case is otherwise unnecessarily delayed in being
brought to trial.
         Wherefore, for the aforementioned reasons, Defendant Hill’s Motion to Dismiss
is hereby DENIED without prejudice.
         IT IS SO ORDERED.


                                                /s/Jeffrey J Clark
                                                     Judge

JJC/jb

oc: Prothonotary
copy: Julie Johnson, DAG
      Alexander Funk, Esq.




                                            5
