IN THE SUPERIOR COURT OF THE STATE OF DELAWARE

ANDREW TUCKER, )
)
Petitioner )
)
V. )
) ID No.: 1309014648
STATE OF DELAWARE )

Submitted: February 7, 2020
Decided: April 14, 2020

On Petition for Sentence Modification
DENIED.

ORDER

And now, this 14" day of April 2020, the Court makes the following findings:

1. Defendant Andrew Tucker (“Tucker”) was charged in this Court with

two counts of Burglary Second Degree and related offenses. Trial on the charges

was held in October 2014 and the jury returned a verdict of guilty of all charges.

2. On February 20, 2015, upon the State’s motion, the Defendant was

declared a habitual offender on one of the burglary counts, and a sentence of eight

years on that charge was mandated by operation of 11 Del. C. §4214, the statute

governing habitual criminal status. An additional two years was imposed on the

second count of Burglary Second Degree that was not part of the State’s habitual

offender motion.
3. In due course, the Defendant’s conviction was affirmed by the
Delaware Supreme Court.’ This was followed in 2019 by a motion for relief
pursuant to then recent amendments to 11 Del. C. §4214(f). Pursuant to Superior
Court Special Rules of Procedure 2017-1(d), the Court granted Defendant a
Certificate of Eligibility, which is essentially a certification that the defendant meets
the time served and other criteria necessary to petition for relief under the
amendments to the habitual offender laws. The right to petition, however, is not the
same as the right to relief. Rather, the Court must review the petitions of those
defendants who meet the essential qualifications to seek relief to determine if theirs
is a case warranting relief.

4. While the State conceded that the Defendant was eligible to seek relief,
it has formally opposed Defendant’s motion. Interestingly, while the statute in
question requires that the Court “articulate on the record the results of its review and
its rationale for granting or denying a petition’? it does not set forth any particular
standard for the review of the previously imposed sentence. Rather, the Court is
simply instructed to “include a review of the applicant's prior criminal history,

including arrests and convictions, a review of the applicant's conduct while

 

' Tucker v. State, 125 A.3d 1100 (Del. 2015).
211 Del. C. §4214(f)

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incarcerated, and available evidence as to the likelihood that the applicant will
reoffend if released, including a formal, recent risk assessment.”*

5. The reviews mandated by statute, however, are just that: reviews. The
statute is silent as to what weight, if any, the Court should apply to these reviewed
elements. It therefore sounds for all the world like the amendments to section
4214(f) are intended to return sentencing discretion to the Court in those cases
meeting the eligibility requirements. In cases where, after considering the same
elements the Court would be considering in any non-mandatory sentencing scheme,
the sentence is one the Court would have imposed anyway, then relief is not
warranted.

6. The Court does not believe that the State’s application of the mandatory
sentence of section 4214 worked some disproportionate or inappropriate result in
this case. The reasons, therefore, are as follows.

7. By his own admission, Defendant’s criminal history is abysmal. His
petition recites that in Delaware he has been arrested sixty-six times, thirty-seven of
them for Title 11 criminal offenses. He has six Delaware felony convictions and
eighteen misdemeanor convictions. As a probationer, he has been found in violation

of his probation seven times. His record out of state is also unimpressive, with

multiple convictions in both Pennsylvania and Maryland.

 

3 Id.
8. A persistent theme emerging from this prolonged criminal history is
that the Defendant takes things that do not belong to him. It may be, as one of his
character witnesses has written, that some consider him “non-violent,” but the
offenses in this indictment were residential burglaries. We might debate at length
whether house burglaries are “violent,’* but we cannot debate the intensity of the
violation of personal space, privacy and the sanctity of the home in cases of
residential burglary. So while the thieves among us are many, house burglars are
not “ordinary” thieves, be they considered “violent” or not. They take much more
than property when they move through a homeowner’s most personal space.

9. The statute further requires us to consider the Defendant’s conduct
while in prison. Once again, this petition is wanting. The Defendant is the recipient
of no less than eleven write-ups for disciplinary infractions. It may be true, as
petitioner urges, that some of these were for relatively minor rules violations. But a
petition burdened by a horrendous criminal record should be otherwise exemplary.
This one is not.

10. The final mandated review concerns evidence that the Defendant is
likely to be arrested again if released, including a recent risk assessment. A risk

assessment is included in the papers and indicates the Defendant is of “moderate”

 

* See, e.g., RICHARD F. CULP, PH.D. ET AL., IS BURGLARY A CRIME OF VIOLENCE?
AN ANALYSIS OF NATIONAL DATA 1998-2007 (January 2015)
https://www.ncjrs.gov/pdffiles 1 /nij/grants/24865 | .pdf

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risk. In addition, the Defendant’s moving papers refer to a plan for the Defendant
to move to Florida if permitted upon release and to care for elderly relatives living
there. Other family members indicate that the Defendant would have a home in
Delaware to stay in while awaiting approval to move his residence to Florida. The
fact that the Defendant has any family members at all willing to say something
positive about him is a tribute, either to him or his family members. It is just
unfortunate that his family has been in his life for many, many years and it seems he
was virtually never out of legal jeopardy. Thus, his family influences must be
discounted in light of his long criminal history.

11. It must be added that the Court, in fashioning a sentence absent the
construct of the specific considerations of section 4214, would also consider the
nature of the offenses under consideration, their victim impact and their impact on
society at large. So too would the Court consider that the State could have, but did
not, proceed to seek habitual offender sentencing on both counts of Burglary Second
Degree, which would have put Defendant behind bars for sixteen years.

12. Had the State done so, the instant motion might well call for relief. But
the State did not, and Defendant ended up with a ten year sentence. The Court finds,
on balance, that this sentence is in line with what the Court might have imposed even
absent the habitual offender motion. Due to the nature of these offenses and

Defendant’s long criminal history, he was due for a substantial jail sentence. Ten
years is substantial but not outside the range of reason. Applying the criteria called
for under the statute, and in consideration of what the Court would likely have
imposed, even without a habitual petition, the Court concludes that this is not one of

those cases that in justice requires relief from the mandatory features of the statute.

Be“
Judge Charles E. Butlér~

The motion is, therefore, DENIED.

IT ISSO ORDERED.

 
