IN THE SUPERIOR COURT OF THE STATE OF DELAWARE

STATE OF DELAWARE )
)

v. ) I.D. Nos. 1510008854

) 15 1201473 1

TANIKA LEWIS, ) 1505 0073 92
)
Defendant. )

Submitted: February 24, 2017
Decided: April 18, 2017

Upon Motions for Modification of Sentence Regarding Restitution
State’s Motion - DENIED
Defendant’s Motion - GRANTED in part

The Court hereby finds that the procedural posture of this matter is as
follows:

l. On January 13, 2016, Defendant Tanika LeWis (“Defendant”) entered
a plea of Guilty to Burglary Third Degree, Forgery Second Degree, and Theft
Under $1500, and agreed to pay restitution to certain identified victims of her
criminal conduct.

2. By Order dated March 9, 2016, effective March 3, 2016, Defendant
Was sentenced (“Sentencing Order”): (i) as to Burglary Third Degree, restitution of
$47.00 and 3 years at Level V as an Habitual Offender pursuant to 11 Del. C. §
4214(a); (ii) as to Forgery Second Degree, restitution of $4,987.15 and 2 years at

Level V, suspended for 2 years at Level lV/Crest, suspended after successful

completion for balance of time to be served at Level III/GPS; and (iii) as to Theft

Under $1500, restitution of $4,686.00 (“Theft Restitution”) and 12 months at Level
V, suspended for 12 months Level III/GPS.

3. The Court’s order of Theft Restitution is currently at issue. The order
of Theft Restitution arises from Defendant’s Theft of a purse belonging to a
member of the public (“Theft Victim”) While Theft Victim Was on the premises of
Delaware College Preparatory Academy.

4. By Letter dated January 13, 2017, Philadelphia Insurance Company
(“PIC”) contacted the Court directly through Maryland counsel. PIC claims to
have insured Delaware College Preparatory Academy and to have paid $4,196.33
to Theft Victim in its capacity as an insurer. PIC requests that the Court modify
the Sentencing Order such that a portion of Thef`t Restitution Will be made payable

to PIC rather than to Theft Victim.l

5. The Court forwarded PIC’s letter to the State and Defendant. Upon
consideration of PlC’s letter, the State and Defendant both made requests for relief.
The State requests modification of the Sentencing Order as to Theft Restitution
such that the amount that PIC paid to Theft Victim is made payable to PIC instead.
Defendant requests modification of the Sentencing Order to vacate Theft

Restitution to Theft Victim.

 

l ln addition to the $4,196.33 that PIC paid to Theft Victim, the request for Theft
Restitution also includes an additional $500.00 for a deductable connected to the
insured loss. The Court notes that there is a discrepancy between the amount
sought by PIC and the $4,686.00 of Theft Restitution under the Sentencing Order.

2

NOW, THEREFORE, upon consideration of the pending requests by the
State and Defendant for modification of the Sentencing Order as to Theft
Restitution; the facts, arguments, and legal authorities set forth by the parties;
statutory and decisional law; and the entire record in this case, the Court hereby
finds as follows:

1. PlC’s request is not properly before the Court. PIC did not file a
motion to intervene in this criminal action and did not otherwise properly request
relief through Delaware counsel. lnstead, counsel who is not admitted to the Bar
of the Supreme Court of the State of Delaware sent an informal letter directly to
this judicial officer without sending copies to the Prothonotary or notifying the
State or Defendant of the request. The Court will not consider a request for relief
that is made by a party who is not properly before the Court.

2. Theft Victim was already paid for her loss over and above the
deductible, and it would be inappropriate for Theft Victim to receive double
compensation.2 Accordingly, the Court agrees with both the State and Defendant
that the Sentencing Order as to Theft Restitution to Thef`t Victim must be modified

3. The Delaware Supreme Court has closely scrutinized restitution
awards by the Superior Court in criminal cases for compliance with due process.

The Court notes that Thef`t Restitution to Theft Victim was properly awarded at the

 

2 see L@cklear v. sra¢e, 692 A.zd 898, 901 (Dei. 1997).
3

time of Defendant’s sentencing, when this Court had jurisdiction to impose such an
order and an award of restitution was consistent with due process.3 Now,
Defendant’s counsel vehemently objects to the transfer of Theft Restitution to PIC
by noting, among other things, that neither PIC nor its claimed insured Delaware
College Preparatory Academy is listed as a victim on the plea agreement
documents4 Defendant’s counsel further objects on the grounds that PIC’s request
is untimely and was not presented at the time of sentencing.

4. Defendant is correct that PIC is not Defendant’s insurance company
or an identified victim in Defendant’s plea agreement5 Rather, PIC insured
Delaware College Preparatory Academy and paid Theft Victim’s claim of
$4,196.33. Even under circumstances where an insurance company is an identified

victim of criminal conduct, statutory law assigns low priority status for

 

3 Pursuant to Superior Court Criminal Procedural Rule ll(c)(l), the Court
addressed Defendant personally in open court and determined that Defendant
understood the nature of the charge to which the plea was offered, the mandatory
minimum penalty provided by law, if any, and the maximum possible penalty
provided by law. Accordingly, Defendant acknowledged in open court that the
range of possible penalties included the sentence that was imposed by the Court in
this case, including payment of restitution.

4 According to the affidavits of probable cause located in the Court’s files,
Defendant’s crimes were committed at Steve’s Liquor Store, Delaware College
Preparatory Academy, and Mount Pleasant Elementary School. The Court also
notes the discrepancy between the amount sought by PIC and the amount of Theft
Restitution ordered at Defendant’s sentencing.

5 Cf. Benton v. State, 711 A.zd 792, 798 (Dei. 1998) (division Of restitution award
between victim and victim’s insurer who paid claim noted as acceptable).

4

reimbursement of restitution to the insurance company.6 The Delaware Supreme
Court has noted that the “restitution payor’s own carrier is not a proper beneficiary
of restitution payments.” 7 According to the Supreme Court, insurance carriers are
in the business of providing loss coverage and “the criminal justice system [should
not serve] as a collection agency for insurance carriers.”8

5. Moreover, although this Court acknowledges that the Delaware
Supreme Court has construed the statutory term “victim” to include insurers that
have compensated policy-holding victims,9 the Supreme Court has also recognized

that the Court should exercise discretion in awarding restitution because the Court

ll

“does not decide cases in a vacuum.”10 For example, in Pratt v. State, the

Supreme Court found it significant that defendants did not have “any marketable
job skill nor any prospect for future training.”12 While the Supreme Court affirmed
the award of restitution to the insurers in Pratt, the Supreme Court also cautioned

trial courts by noting “the obvious severity of the defendants’ sentences and the

 

6 11 Del. C. § 4106(d)(2)(“ . . . where there are multiple victims, disbursement
shall be in proportion to the amounts owed to each victim, with individuals to
receive disbursements in full before insurance companies receive any
disbursements.”).
;Moore v. State, 15 A.3d 1240, 1245 n.14 (Del. 2011).

Id.
9 See, e.g., Nathan v. State, 2008 WL 4809424, at *l (Del. Nov. 5, 2008) (citing
Pratt v. State, 486 A.2d 1154, 1160 n.4 (Del. 1983)).
‘0 Pmtt, 486 A.2d at 1161.
" 486 A.2d 1154 (Del. 1983).
'21¢1. at1161-62.

prospect that they will be unable to pay the restitution ordered_primarily to

insurers . . . .”13

6. This Court recognizes that an award of restitution in this case is
consistent with statutory law.14 However, “the defendant’s ability to pay is an
element to be considered in determining the amount of restitution.”15 Defendant
was sentenced in this matter as an Habitual Offender. She has a long history of
documented trauma and substance abuse. She will remain incarcerated until at
least October 8, 2018 - another 18 months. She currently owes 814,384.26 in
fines, costs, and assessments, including 812,636.26 in restitution. No payments
have been made in this case and, if past history is any indication of future conduct,
no payments should be expected.

7. While it is possible for this Court to exercise its discretion to award
restitution to PIC, the likelihood of payment is virtually non-existent. In light of
the procedural circumstances of PIC’s request and the specific context of this case,

the Court finds that it is inconsistent with the administration of justice to award

 

'31d. at 1162.

14 See 11 Del. C. § 4204(c)(8)-(10). 11 Del. C. § 4106(a) provides, in pertinent

part:
[a]ny person convicted of stealing, taking, receiving, converting,
defacing, or destroying property, shall be liable to each victim of the
offense for the value of the property or property rights lost to the
victim and for the value of any property which has diminished in
worth as a result of the actions of such convicted offender and shall be
ordered by the court to make restitution.

15 Pmtt, 486 A.2d at ii6i.

restitution to PIC. On the other hand, the award of restitution must be modified to
reflect that Theft Victim has been paid all but the $500 deductible for her loss.
Therefore, the Court will modify the Sentencing Order to reduce the award of
restitution as to Theft Under 81500.

NOW, THEREFORE, this 18th day of April, 2017, the State’s request
that the Court modify the Order of Theft Restitution for payment to
Philadelphia Insurance Company is hereby DENIED and Defendant’s motion
for modification of the Sentencing Order is hereby GRANTED in part. A

modified Order Will be issued in connection With this decision awarding

 

 

restitution of 8500 to Theft Victim as to Theft Under $1 (jl \‘§l
IT Is so oRDERED. _--”
The Honorable And"r`ea L. Rocanelli
cc: Prothonotary

Tanika Lewis (SBI #00319916)
Barzilai Axelrod, Esq.

Darryl J. Rago, Esq.

James D. Skeen, Esq.

