IN THE SUPERIOR COURT OF THE STATE OF DELAWARE
STATE OF DELAWARE,
ID No. 9807019438
v. : In and For Kent County

CATHERINE W. CULP,

Defendant.
MEMORANDUM OPINION AND ORDER
Submitted: March 1, 2018

Decided: March 22, 2018

Dennis Kelleher, Esquire, DEPARTMENT OF JUSTICE, Dover, Delaware, for the
State.

William T. Deely, Esquire, OFFICE OF DEFENSE SERVICES, Dover, Delaware,
for the Defendant.

Primos, N.

This case presents an issue Which is easily stated but difficult to resolve:
Whether the Court should grant a plea of leniency.l The State of Delaware Board of
Parole (hereinafter the “Board”), upon application of the Department of Correction
(hereinafcer the “Department”), has recommended to this Court that it reduce the
sentence of Catherine W. Culp (hereinafter “Ms. Culp”), Who Was convicted of the
murder of Lee Hicks (hereinafcer “Mr. Hicks”). In reaching its decision, the Court
must contemplate a variety of considerations, both practical_the extent of Ms.
Culp’s rehabilitative efforts and Whether she poses a danger to the community; and

esoteric_When does leniency serve the ends of justice?

I. FACTUAL AND PROCEDURAL BACKGR()UND

At approximately one o’ clock in the morning on July 29, 1998, Ms. Culp
frantically banged on the door of Corinthian and Kimberly Cuffee. When Mr. Cuffee
opened the door, Ms. Culp told him “I need help . . . he is hurt, I need somebody to
come call 9l l.” They called the police, and Ms. Culp described her involvement in
Mr. Hicks’s death: “He told me to give him his gun, and I gave it to him. And the
gun Went off and it shot him in the back.” Police arrived at the Cuffee residence and
Ms. Culp directed the officers to Mr. Hicks’s home, just a few houses down the
street. Inside, police discovered Mr. Hicks lying dead in his bed. Investigators later
discovered that Mr. Hicks had died from a single, close range, gunshot Wound.

In December of 1999, this Court convicted Ms. Culp of murder in the first
degree and possession of a firearm during the commission of a felony. Ms. Culp

appealed. The Supreme Court of Delaware reversed the convictions on the basis of

 

1 A motion that seeks the reduction of a lawfully imposed sentence is “essentially a plea for
leniency . . . and is addressed to the sound discretion of the trial court.” Um`ted States v. Robinson,
344 F. Supp. 956, 959 (D. Del. 1972), ajj"d, 474 F.Zd 1337 (3d Cir. 1972).

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a breach of the Delaware Rules of Evidence, and a new trial was held. In July of
2001, Ms. Culp was again convicted, this time of murder in the second degree and
possession of a firearm during the commission of a felony. She was sentenced
effective July 29, 1998, to 25 years in prison. For almost eighteen years, beginning
with her initial incarceration in July 1998, Ms. Culp remained continuously
incarcerated at Delores J. Baylor Women’s Correctional Institution (hereinafcer
“WCI”).

During these years, Ms. Culp exhibited exemplary behavior and commitment
to rehabilitation She achieved an Associates of Applied Science Degree in
Marketing, graduating with honors, and completed courses qualifying herself to
teach other inmates on a variety of subjects, including G.E.D. classes, Thresholds,
and drug education classes. She served as an educational tutor at WCI, completed
numerous computer courses, achieved a State of Delaware computer operator
certificate, and attained abilities in Spanish, culinary arts, women's health, public
speaking, dancing, and floral design.

On April 18, 2016, this Court modified Ms. Culp’s sentence, citing her
extraordinary rehabilitation Ms. Culp was released for time served and moved to
Florida to reside with her brother and sister, Douglas Wiggins and Angela Wiggins.
During this time, she complied with the requirements of her probation in all respects.
She obtained and held employment, received a driver’s license, saved enough money
to purchase her own car, and joined a church.

Ms. Culp’s freedom was, however, short-lived. On December 8, 2016, the
Supreme Court reversed this Court’s decision to modify her sentence, holding that
the Superior Court is not empowered to grant pleas for leniency sua sponte based

upon rehabilitative efforts, if they are filed more than 90 days after sentencing2 The

 

2 State v. Culp, 152 A.3d 141, 146 (Del. 2016).

Supreme Court indicated that the Superior Court may only grant such a plea upon
the application of the Department, filed with the Board pursuant to 11 Del. C. §
4217-as the Court has received here.3 In so holding, the Supreme Court emphasized
the “important role” that Section 4217 assigns the Department and the Board in
assuring “community safety and public welfare in the evaluation of claims of
successful rehabilitation”4

Upon receiving this news, Ms. Culp voluntarily paid her way back to
Delaware and submitted herself to the custody of the Department on January 5, 2017.
Since returning to WCI, Ms. Culp has continued to exhibit the indicia of substantial
rehabilitation

On July 18, 2017, the Department applied with the Board, pursuant to Section
4217, to reduce Ms. Culp’s sentence, stating that “[w]e feel that [she] is not a danger
to herself or the community at this time. Ms. Culp demonstrated during her repiieve
that she is willing to be a productive part of her community.” On December 4, 2017,
the Board submitted its recommendation for sentence reduction to this Court,
reporting that the Department had shown good cause for sentence reduction in that
Ms. Culp was fully rehabilitated, and that she would not pose a risk to anyone if
released. The Board voted four to one to modify Ms. Culp’s sentence by suspending
the remainder of her Level V incarceration for two years of Level III probation

Due to reduction of her sentence for “good time,” Ms. Culp is set to be

released on March 15, 2019.

 

3 ld.
4 ld.

II. ARGUMENTS OF PARTIES

As previously indicated, the Department asserts that Ms. Culp’s release “into
the community would not constitute a substantial risk to the community or [her]self.”
Further, Ms. Culp has “demonstrated rehabilitation through appropriate program
participation”

The Department interviewed Ms. Culp in connection with this application
When asked about the cause of Mr. Hicks’s death, Ms. Culp said, “Mr. Hicks asked
her to get his gun from the dresser . . . . Ms. Culp stated that she never handled a gun
before. Her judgment was blurred due to the amount of alcohol she consumed and
she was playing with the gun when it accidentally went off shooting Mr. Hicks.” The
Department further probed Ms. Culp on the issue of remorse, and she responded that
“she knows that what happened that night was entirely her fault” and that she “feels
for the loss Mr. Hicks’s family had to endure because of her actions.” In the
Department’s view, “Ms. Culp appears to be truly remorseful for what happened to
Mr. Hicks and his family.”

At the hearing held With regard to this matter on February 13, 2018, counsel
for Ms. Culp emphasized her accomplishments and good behavior, which have been
recounted supra, and argued that she was genuinely remorseful. Counsel attributed
Ms. Culp’s continued insistence that the killing was accidental to the fact that the
traumatic experience and her intoxication may impede her ability to recall precisely
what happened. Counsel conceded that the 25-year sentence was appropriate when
imposed, but argued that Ms. Culp is a completely different person today.

The State’s concise written response reads, in its entirety, as follows:

On July 29, 1998 Catherine Culp shot Lee Hicks in the back killing
him. She was arrested and convicted of Murder in the Second Degree
and Possession of a Firearm During the Commission of a Felony. She

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was sentenced to a total of 25 years in prison for her senseless killing
of Mr. Hicks. The State’s position is that this was an appropriate
sentence at the time and remains appropriate in light of the serious and
unprovoked nature of this offense. Therefore, the State remains
opposed to the reduction pursuant to ll Del. C. § 4217.

The State’s attorney also remarked at the hearing that Mr. Hicks’s family opposes
the motion, and indicated that the seriousness of the crime weighs against this

Court’s granting of the motion

III. STANDARD

As previously indicated, 11 Del. C. § 4217 empowers the Superior Court to
modify a prisoner’s sentence upon receipt of an application filed by the Department
with the Board. Such a modification may be granted “for good cause shown which
certifies that the release of the defendant shall not constitute a substantial risk to the
community or the defendant’s own self.”5 In this context, good cause is defined as
including, but not limited to, “rehabilitation of the offender, serious medical illness
or infirmity of the offender and prison overcrowding.”6 Rehabilitation is in turn
defined as “the process of restoring an individual to a useful and constructive place
in society especially through some form of vocational, correctional, or therapeutic
retraining.”7 While the legislature has instructed this Court to consider the factors of
good cause and risk to the community, this Court is nonetheless empowered with

“discretion [to] grant or deny the application for modification of sentence.”8

 

5 ll Del. C. § 4217(b).

6 § 4217(¢).

7 § 4217(h).

8 § 4217(e); Robinson, 344 F. Supp. At 959. In her supplemental briefing regarding this issue, Ms.
Culp agreed that “[t]he ultimate choice of whether to grant or deny such an application lies in the
discretion of the Superior Court Judge.”

IV. DISCUSSION

A. Good Cause and Danger to the Community

This Court’s practical considerations are straightforward The Board and the
Department both represent to the Court that Ms. Culp has shown good cause for her
release and that she is not a threat to anyone. Ms. Culp’s rehabilitation as explained
supra and in this Court’s previous order correcting her sentence, is evident. She has
demonstrated extraordinary self-improvement efforts through her participation in
classes, courses, certifications, community involvement, and service to others.
Additionally, her positive disciplinary record and nine months spent in Florida,
which passed without incident, demonstrate that she is not a threat to the community.

The Court considers evidence of remorse to be relevant to Ms. Culp’s
rehabilitation and whether she poses a continuing danger to the community,9 The
Department, after interviewing Ms. Culp, opined that she was “truly remorsef`ul for
what happened to Mr. Hicks and his family.”

The Court notes that from the initial 911 call to the interview with the
Department, Ms. Culp has continuously asserted that Mr. Hicks’s death was an
accident, and denied that she ever intended to kill him. However, Ms. Culp’s
continued insistence that the death was accidental does not necessarily indicate a
lack of remorse or denial of responsibility. Ms. Culp’s conflicting accounts of Mr.

Hicks’s death may reflect a lack of memory. The record shows that Ms. Culp was

 

9 See Pickens v. State, 850 P.2d 328, 337 (Okl. Cr. 1993) (holding that “[e]vidence of lack of
remorse is pertinent to a finding that the defendant is a continuing threat to society”); State v.
Ramos, 2003 WL 21186032 at*3 (Ohio Ct. App. 2003) (finding that “failure of the defendant to
acknowledge or accept responsibility for the conduct further is an indicia of the danger posed to
the public”).

highly intoxicated at the time, and the Court understands that trauma or stress can
affect a person’s recollection

The jury in Ms. Culp’s second trial determined that she was guilty of second
degree murder, i.e., that she killed Mr. Hicks in a manner that exhibited a “cruel,
wicked, and depraved indifference to human life.”10 Nonetheless, while Ms. Culp
may characterize her legal responsibility for Mr. Hicks’s differently than did the
jury, she does admit that “what happened that night was entirely her fault.”
Additionally, Ms. Culp’s substantial efforts toward rehabilitation indicate her
appreciation for the impermissibility of her prior conduct. In Um' ted States v. Sally,ll
the Third Circuit explained that, with regards to the effect of remorse in the
analogous context of sentencing, actions speak louder than words: “[u]nlike the
usual adjustment for acceptance of responsibility where defendants may all-too-
often be tempted to feign remorse for their crimes and be rewarded for it, we view
the opportunity for downward departures based on extraordinary or exceptional post-
conviction rehabilitation efforts as a chance for truly repentant defendants to earn
reductions in their sentences based on a demonstrated commitment to repair and to
rebuild their lives.”12

The Court considers one circumstance particularly demonstrative of Mr.
Culp’s complete rehabilitation the fact that, upon being informed of the Supreme
Court’s December 2016 decision, she returned voluntarily, and at her own expense,
to Delaware to serve out the remainder of her sentence. The Court finds that Ms.

Culp has been fully restored as a useful and constructive member of society and

poses no danger to the community,

 

10 ii Del. C. § 635.
11 116 F.3d 76 (3d Cir. 1997).
121¢1. at 81.

B. The Court’s Discretion

The Court alluded earlier to the esoteric consideration of whether justice is
served by Ms. Culp’s serving the remaining year of her sentence.

The Supreme Court of Delaware has recently stated that, in our tradition of
criminal justice, incarceration is needed “to fulfill objectives such as retribution and
even lofcier goals such as rehabilitation.”13 The Court has already discussed the issue
of rehabilitation and found that Ms. Culp is indeed rehabilitated. Additional
incarceration would, in the Court’s view, do nothing to further that goal. Moreover,
the Court views as critical the fact that the Department_an agency entrusted by
statute with responsibility for “treatment, rehabilitation and restoration of offenders
as useful, law-abiding citizens within the community”_is itself applying for this
relief.14

The topic of retribution, however, has not yet been discussed. In the law, it is
viewed as a justly deserved punishment15 This ancient legal piinciple, the lex
talionis, holds that “[e]veryone is to be punished alike in proportion to the gravity of
his offense or to the extent to which he has made others suffer.”16

During the hearing on this matter, the State rightly emphasized the seriousness
of Ms. Culp’s offenses to the Court. The murder of another human being is a heinous
crime. To this day, Mr. Hicks’s family members continue to bear the sorrow and
pain of his tragic death, and moum the future that was taken from him. lt is,

therefore, just and appropriate that the punishment for Ms. Culp be severe.

 

13 Raufv. State, 145 A.3d 430, 441 (Del. 2016). See also State v. Leroy, 1993 WL 19629, at *8
(Del. Super. Jan. 14, 1993) (“[t]he philosophical underpinnings of the criminal law is part
retributive, part rehabilitative”).

14 11 Del. C. 6502(a).

15 Retribution, Black's Law Dictionary (10th ed. 2014).

16 Morris R. Cohen, Reason and Law 53 (1961).

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However, punishment cannot be measured only by the length of time spent in
prison The extent and reality of Ms. Culp’s punishment thus far_her “daily pain
and suffering inside prison”_are beyond easy quantification17 The Court has a few
indicators: Ms. Culp’s Department interviewer reported that Ms. Culp “feels for the
loss Mr. Hicks’s family had to endure because of her actions” and that her heart
“aches” because of his death.18 The Court notes that Ms. Culp has been separated
from her four children and three grandchildren during her imprisonment, and that
she has been deprived of taking a greater role in their lives. It was surely a painful
experience for Ms. Culp to be returned to custody after tasting nine months of
f`reedom, believing that her days of incarceration were behind her.

The Court is also skeptical that an additional year under the custody of the
Department would have further significant punitive value for Ms. Culp. During her
time in prison, Ms. Culp has seized every opportunity to transform her
incarceration-intended, in part, as a medium of punishment_into the means of
restoring her dignity and integrity. A friend of Ms. Culp, Ms. Catherine P. Weaver,
wrote to the Court on this matter, indicating that Ms. Culp is a “person who seeks to
find meaning in every experience.” The Court believes that Ms. Culp has found the

meaning of her imprisonment,

 

17 See Robert Blecker, Haven or Hell? Insia'e Lorton Central Prison.' Experiences of Punishment
Justifi`ed, 42 Stan. L. Rev. 1149, 1152 (1990) (“[t]he reality of each criminal's punishment consists
in the experience of that punishmen ”).

18 See Nigel Walker, Punishment, Danger, and Stigma 129 (1980) (observing that remorse may be
relevant to the Court’s retributive objectives because a remorsefiil defendant may have already
punished himself enough).

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V. CONCLUSION

ln its 2016 decision, the Supreme Court recognized Section 4217 as “the
appropriate mechanism through which a defendant may pursue sentence
modification based upon rehabilitation”19 That mechanism has now been correctly
employed. The Court finds that the objectives of retribution and rehabilitation have
been accomplished, and that neither goal will be meaningfully furthered by Ms.
Culp’s continued incarceration Accordingly, the Court exercises its discretion to
grant the application of the Department to reduce the sentence of Catherine W. Culp,
as approved by the Board, having confirmed good cause and lack of any danger to

the community,

WHEREFORE, for the foregoing reasons, the Motion for Sentence
Modification is GRANTED. The balance of Ms. Culp’s Level V sentence is
suspended after time served for two (2) years of Level III probation The Level III
supervision may be transferred through interstate compact. Ms. Culp shall be held at
Level V until the interstate compact transfer has been approved. A11 other aspects of

Ms. Culp’s sentence are to remain the same.

IT IS SO ORDERED.

%/C_%:__~

Noel Eason Primos, J.

 

19 State v. Culp, 152 A.3d 141, 146 (Del. 2016).

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