IN THE SUPERIOR COURT OF THE STATE OF DELAWARE

STATE OF DELAWARE )

V. I.D.# 1011012275
ANDRE MCDOUGAL,
Defendant.

Submitted: June 11, 2020
Decided: July 31, 2020

ORDER GRANTING DEFENDANT’S REQUEST
FOR A CERTIFICATE OF ELIGIBILITY TO FILE UNDER
11 Del. C. § 4214(f) AND Del. Super. Ct. Spec. R. 2017-1(d)

This 31st day of July, 2020, upon consideration of the Request for Certificate
of Eligibility filed on behalf of Andre McDougal (the “Request”), the Attorney
General’s response thereto,' and the record in this matter, it appears to the Court
that:

1. On September 14, 2011, following a two-day trial, a jury convicted
Andre McDougal of Trafficking in Heroin, Possession with Intent to Deliver Heroin

(PWITD), and Possession of a Firearm by a Person Prohibited (PFBPP). Before

sentencing, the State filed a motion to declare McDougal a habitual offender for all

 

'D.L. 101. See also D.I. 102, 104, 107.
three charges.” The Court granted the State’s motion on December 15, 2011 and
declared McDougal a habitual offender under 11 Del. C. § 4214(a) and (b). The
Court then sentenced McDougal to the minimum sentence of two separate life
sentences for the Trafficking and PWITD charges. The Court also sentenced
McDougal to an additional five years for the PFBPP charge.

2. In 2016, the General Assembly amended the State’s habitual offender
law, 11 Del. C. § 4214, giving certain categories of previously sentenced habitual
offenders an opportunity to file a motion for sentence modification. On December
9, 2019, McDougal filed a Request for a Certificate of Eligibility to file a petition
seeking exercise of the Court’s jurisdiction to modify his sentence under 11 Del. C.
§ 4214(f).2 The Attorney General responded, joined McDougal’s Request, and
asked the Court to grant McDougal a certificate of eligibility.’

5. After reviewing the record and counsel’s submissions, the Court

concludes McDougal meets the type-of-sentence and time-served eligibility

 

* The State moved to declare McDougal a habitual offender under then-extant 11 Del. C. §
4214(b) with respect to the Trafficking and PWITD charges and under then-extant 11 Del. C. §
4214(a) with respect to the PFBPP charge.

3 DI. 98; Del. Super. Ct. Spec. R. 2017-1(c)(2), (3).

*D.I. 101.

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requirements set forth in 11 Del. C. § 4214(f).°° The Attorney General has not
demonstrated “by specific averment” that “there is a good faith basis to believe that
...a petition [by McDougal] ... may not be heard because the felony establishing
[McDougal] as a habitual offender is one for which review is [not now]-permitted
as provided for in 11 Del. C. § 4214(f) and [Del. Super. Ct. Spec. R. 2017-
1}(d)(11).”” The Attorney General instead has moved the Court to grant McDougal
a certificate of eligibility.

6. FOR THE FOREGOING REASONS, IT IS ORDERED that
McDougal’s Request for a Certificate of Eligibility is GRANTED, and he may file
a petition seeking exercise of this Court’s jurisdiction to modify the sentence under
11 Del. C. § 4214(f) and Del. Super. Ct. Spec. R. 2017-1(d). If McDougal intends
to request that the Court consider the petition without regard for the preferred

sequence set forth in Section 4214(f), such a request SHALL be included in the

 

> 11 Del. C. § 4217(f) (2017) (providing that an inmate must be serving a sentence imposed upon
him as “an habitual criminal [that is] a minimum sentence of not less than the statutory maximum
penalty for a violent felony pursuant to 4214(a) of this title, or a life sentence pursuant to 4214(b)
of this title prior to July 19, 2016,” and that an inmate has met the time-served eligibility
requirement when the inmate “has served a sentence of incarceration equal to any applicable
mandatory sentence otherwise required by [the new provisions of 11 Del. C. § 4214] or the statutes
describing said offense or offenses [for which the inmate was sentenced], whichever is greater.”).
‘ As the Court explained in detail in its letter to counsel dated May 4, 2020, McDougal’s
mandatory sentence under that time-served requirement is eleven years: eight years for the

PFBPP charge and 3 years for the Trafficking charge. Counsel agrees with that calculation. D.I.
104, 107. But, McDougal only was sentenced to five years for PFBPP. In light of that unusual
circumstance, the Court is granting this certificate, which it believes is consistent with the
purpose and intent of Section 4214(f).

™ Del. Super. Ct. Spec. R. 2017-1(c)(5) (setting forth the content requirements for the Attorney
General’s written response to a request for certificate of eligibility).

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petition. If a request to consider the petition outside the preferred sequence is made,
the State SHALL respond to that request in its response to the petition.

7. This grant of a certificate of eligibility to seek relief is not a ruling on
whether McDougal’s sentence will be modified. That judgment will be left to the
discretion of the Court.®

8. IT IS FURTHER ORDERED that the Department of Correction and
the Department of Justice SHALL, consistent with a memorandum of
understanding entered (or other protocols devised) for the express purpose of
facilitating the lawful and efficient transfer of materials and information required
for consideration of a petition under 11 De/. C.§ 4214(f) and Del. Super. Ct. Spec.
R. 2017-1(d), provide to McDougal’s attorney of record, or counsel’s designee,

access to such materials and information without undue delay.’

 

Original to Prothonotary
ce: Patrick J. Collins, Esquire
Annemarie H. Puit, Deputy Attorney General

 

® Del. Super. Ct. Spec. R. 2017-1(d)(9).
? Del. Super. Ct. Spec. R. 2017-1(c)(7).
