          IN THE SUPREME COURT OF THE STATE OF DELAWARE

LIONEL HICKMAN,                      §
                                     §   No. 6, 2014
     Defendant Below,                §
     Appellant,                      §   Court Below – Superior Court
                                     §   of the State of Delaware,
     v.                              §   in and for Sussex County
                                     §
STATE OF DELAWARE                    §
                                     §
     Plaintiff Below,                §   Cr. I.D. Nos. 1211007824
     Appellee.                       §                 1305013170
                                     §                 1212004273
                                     §
                                     §

                           Submitted: September 10, 2014
                            Decided: September 10, 2014

Before STRINE, Chief Justice, HOLLAND and RIDGELY, Justices.

                                    ORDER

     This 10th day of September 2014, it appears to the Court that:

     (1)    On January 15, 2013, Hickman was charged by information with

Carrying a Concealed Deadly Weapon, Possession of a Firearm During the

Commission of a Felony (“PFDCF”), Criminal Mischief over $5,000, and

Misdemeanor Theft. On February 18, 2013, a Sussex County grand jury indicted

Hickman with two counts each of drug dealing, Aggravated Possession of a

Controlled Substance, PFDCF, and Possession of a Firearm by a Person

Prohibited, and one count of Conspiracy Second Degree (collectively, the “Drug
Case”). On May 20, 2013, a grand jury indicted Hickman on two counts each of

noncompliance with conditions of bond and terroristic threatening and one count

each of endangering the welfare of a child and criminal contempt of a domestic

violence protective order.

      (2)    On November 8, 2013, Hickman resolved two of the cases against

him—all but the Drug Case—by pleading guilty to Carrying a Concealed Deadly

Weapon (“CCDW”) and Noncompliance with Bond. Sentencing pursuant to the

plea agreement was set to occur after a presentence investigation and after the

conclusion of the Drug Case against Hickman.

      (3)    On November 26, 2013, Hickman agreed to plead no contest to

Maintaining a Drug Property to resolve the Drug Case. The trial court ordered

sentencing for the Drug Case to occur after a presentence investigation was

completed.

      (4)    On December 20, 2013, the Superior Court held a sentencing hearing

for all three cases against Hickman. The Superior Court sentenced Hickman as

follows: CCDW—eight years Level V incarceration, suspended after six years for

two years Level IV home confinement; remaining charges—eight years Level V

incarceration, suspended for eighteen months Level III probation. The Superior

Court also fined Hickman $10,000.




                                       2
     (5)     Hickman argues that the Superior Court abused its discretion in

sentencing him when it relied on factual predicates that were false or lacked

minimum indicia of reliability. He specifically points to four pieces of evidence

that allegedly should not have been relied upon by the Superior Court as part of its

sentencing analysis.

      (6)    First, Hickman submits that evidence of his being twice a shooting

victim (the “Shooting Evidence”) should not have been factored into the

sentencing. There was no evidence introduced that his victimhood was caused by

involvement in illegal activity and it should have been viewed merely as a function

of his surroundings rather than any choice of his own. Second, Hickman contends

that the presence of other weapons in his home (the “Guns Evidence”) lacks the

necessarily reliability to conclude that he was involved in the drug trade. Third,

Hickman disputes the Superior Court’s conclusion that he was involved in the drug

trade based on the large sums of money he possessed. Hickman claims that he

received the $2,250 that was found on his person from a personal injury settlement

rather than from drug activity. Fourth, Hickman contends that the Superior Court

improperly relied on evidence that he had money in his backyard without record

support (collectively, the third and fourth pieces of evidence are referred to as the

“Money Evidence”). Cumulatively, according to Hickman, these factors are all




                                         3
false or lacked minimum indicia of reliability such that the Superior Court’s

sentence based upon that evidence constitutes an abuse of discretion.

       (7)    The State responds first by noting that Hickman received a sentence

that fell within the statutory guidelines for the offenses.1 Regarding his twice

being shot, the State cites the Superior Court’s skepticism after Hickman

responded that his being robbed and shot on two occasions in a span of three

months was simply bad luck. As for the other weapons present in Hickman’s

home, the State contends that the Superior Court properly relied on statements in

the indictment, in which Hickman was charged with possession of multiple

firearms.

       (8)    The State argues that the money found in Hickman’s possession (both

on his person and in his backyard) was valid evidence upon which the Superior

Court could rely. Police had seized $10,000 from Hickman’s home when they

executed a search warrant, in addition to guns and drugs. Moreover, the only

record evidence about the $2,250 as a personal injury settlement comes from


1
  CCDW carries a maximum penalty of 8 years of Level V incarceration. Hickman received 8
years Level V suspended after 6 for two years of Level IV Home Confinement, and a fine of
$5,000 which is authorized by statute. Noncompliance with bond carries a maximum of 5 years
Level V incarceration and a $5,000 fine. Hick was sentenced to 5 years Level V, suspended for
1 year Level III probation and a $5,000 fine. For Maintaining a Drug Property, Hickman faced
up to 3 years of Level V incarceration. He received 3 years Level V, suspended after 18 months
of Level III probation. Hickman’s CCDW sentence did, however, exceed the SENTAC-
recommended sentence, but the SENTAC guidelines are “neither mandatory nor binding upon a
sentencing judge.” See (citing Ward v. State, 567 A.2d 1296, 1297 (Del. 1989).

                                              4
Hickman’s own testimony. In fact, the money was recovered when Hickman was

arrested after allegedly shooting at his ex-girlfriend’s car. The State submits that

the trial court’s sentence was proper in light of the other relevant facts, including

the indictment in the Drug Case.

         (9)    This Court reviews the imposition of a sentence by the Superior Court

for an abuse of discretion.2 “‘Appellate review of a sentence generally ends upon

determination that the sentence is within the statutory limits prescribed by the

legislature.’”3 “Where the sentence falls within the statutory limits, we consider

only whether it is based on factual predicates which are false, impermissible, or

lack minimal reliability, judicial vindictiveness or bias, or a closed mind.”4


         (10) In Delaware, the trial court has broad discretion in determining which

information to rely on in imposing a sentence, including information pertaining to

the defendant’s personal history and behavior, the presentencing report, and other




2
    Kurzmann v. State, 903 A.2d 702, 714 (Del. 2006).
3
 Mayes v. State, 604 A.2d 839, 842 (Del. 1992) (quoting Ward v. State, 567 A.2d 1296, 1297
(Del. 1989)).
4
  Kurzmann, 903 A.2d at 714; see also Owens v. State, 82 A.3d 730 (Del. 2013) (“If the sentence
is within the statutory limits, we will not find an abuse of discretion unless the ‘sentence has
been imposed on the basis of demonstrably false information or information lacking a minimum
indicium of reliability.’” (quoting Mayes, 604 A.2d at 843))).

                                                5
sources.5 After reviewing the record, Hickman’s assertion that the four pieces of

evidence are either false or lack the minimum indicia of reliability is unfounded.

         (11) First, the Superior Court properly exercised its discretion when it

discredited Hickman’s theory that being a victim in two robberies and shootings in

the span of three months was nothing more than bad luck. The Superior Court

expressed obvious skepticism about Hickman’s theory at the sentencing hearing:


         The Court: You just happen to be extremely unlucky of being shot up
         twice by people that could have been associated with the drug
         business, you got robbed twice, they took your stuff and shot you and
         that happened twice in how many months?

         Hickman: Three.

         The Court: Three months. You are just saying that is really bad luck?
         ...

         Hickman: Your Honor, I’m telling you the God’s honest truth.

         The Court: Just bad luck, okay. . . .

         (12) The circumstances of the case warranted the Court’s skepticism and

consideration of the evidence before it. In Hickman’s Drug Case, he was charged

with two counts of Drug Dealing and two counts of Aggravated Possession of a

Controlled Substance. Trial had already begun before Hickman entered into a plea

agreement with the State. The Superior Court had access to the search warrant in

the Drug Case, which included affidavits from two confidential informants, and

5
    Mayes, 604 A.2d at 842 (internal quotation marks omitted).
                                                 6
was entitled to consider “responsible unsworn out-of-court information relative to

the circumstances of the crime and to the convicted person’s life and

circumstance.”6 Thus, the Superior Court did not abuse its discretion in relying on

the evidence of Hickman’s involvement in two previous robberies and shootings.

         (13) Second, the Superior Court appropriately relied on evidence that

Hickman possessed other firearms.             The trial court noted that Mr. Hickman

possessed both a .45 caliber handgun as well as an AK-47 assault rifle and thus

could rely on evidence that Hickman possessed other weapons.7 At the sentencing

hearing, the State highlighted its evidence that “[Hickman] ha[d] the drum

magazine for an AK-47 and that AK-47 was found under the steps of the house

next to a giant suitcase full of marijuana.” The Superior Court noted the context in

which all of the events occurred to support its conclusion: “He was in a violent

world. He participated in a violent world. He was the victim of the violent world.

He shot his gun off and he had the other weapons in the house, large sums of

money, large amounts of drugs. He was in the business.” This conclusion is




6
    Mayes, 604 A.2d at 845.
7
  At the sentencing hearing, the Superior Court stated: “He has got, I think a .45 caliber that he
shot up the car with. When he is arrested and the .45 caliber casings are on him. He’s got an
AK-47. He knows about the AK-47 because he says the police lied, they didn’t find it in the
closet of his room, it was in the shed. He knew exactly about the AK-47. It was either in his
room or where he put it in the shed.”

                                                7
further supported by the State’s evidence that “[i]n his bedroom at the house on

Brickyard Road, he has digital scales, he has plastic baggies . . . .”

      (14) Third, the Superior Court properly exercised its discretion in

discrediting Hickman’s contention that the $2,250 was the proceeds of a personal

injury settlement. The following exchange occurred at the sentencing hearing:


      The Court: How did you get $2,250 if you weren’t working?

      Hickman: If [sic] got a settlement, Your Honor. I had a car accident,
      I even showed him the settlement. He got a copy of the papers. I had
      got a settlement. It was $10,000, a car accident, yeah. I worked at
      Wal-Mart for four years, Sears for three years.

      The Court: When did you last work at Wal-Mart?

      Hickman: In 2011. I think 2011.

      The Court: 2011. You saved thousands of dollars from Wal-Mart?

      Hickman: I collected unemployment.

      The Court: How much did you get a week from unemployment?

      Hickman: It was close to $200 every week.

      The Court: And you were saving thousands of dollars?

      Hickman: Yes, Your Honor. It’s not hard to do, yes.

      Defense Attorney: He indicated to me that was the proceeds from a
      personal injury settlement.

      The Court: Thousands of dollars? Thousands of dollars in the home
      that he admits that he has pled guilty to for [sic] maintaining drugs?
      Thousands of dollars, Mr. Gill.
                                           8
       (15) The Superior Court’ skepticism was well-founded, given the

thousands of dollars police found on Hickman’s person and that Hickman admitted

to maintaining a drug property. In his Reply Brief, Hickman maintains “There is

nothing to show that [the money] is not the proceeds from a settlement.” However,

Hickman never produced any evidence of the settlement for the Superior Court to

consider other than his own word. Thus, there was no reliable evidence that the

$2,250 was in fact from a personal injury settlement. The Superior Court did not

abuse its discretion in evaluating this piece of evidence in its sentencing decision.

    (16)      Finally, the Superior Court did not abuse its discretion in stating that it

believed that Hickman still had cash stashed in his backyard.8 The Superior Court

was privy to the factual circumstances of the case, including the evidence produced

at the limited Drug Case trial, and drew a permissible inference based upon that

evidence.




8
 The comment is also not the type that qualifies as judicial vindictiveness or bias, or a closed
mind. See, e.g., Cruz v. State, 990 A.2d 409 (Del. 2010) (closed mindedness); Dabney v. State,
12 A.3d 1101 (Del. 2009) (bias); Weston v. State, 832 A.2d 742 (Del. 2003) (closed
mindedness).

                                               9
     NOW, THEREFORE, IT IS ORDERED, that the judgment of convictions of

the Superior Court is AFFIRMED.

                                  BY THE COURT:

                                  /s/ Randy J. Holland

                                  Justice




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