          IN THE SUPREME COURT OF THE STATE OF DELAWARE



DONTA E. VICKERS,                 §
                                  §     No. 448, 2014
     Defendant Below-             §
     Appellant,                   §
                                  §     Court Below: Superior Court
     v.                           §     of the State of Delaware,
                                  §     in and for Sussex County
STATE OF DELAWARE,                §     Cr. ID # 1308012233A
                                  §
     Plaintiff Below-             §
     Appellee.                    §

                         Submitted: June 10, 2015
                          Decided: June 11, 2015

Before STRINE, Chief Justice, VAUGHN and SEITZ, Justices.

Upon appeal from the Superior Court. AFFIRMED.


Bernard J. O’Donnell, Esquire, Office of the Public Defender, Wilmington,
Delaware, for Appellant.

Scott D. Goodwin, Esquire, Department of Justice, Wilmington, Delaware, for
Appellee.




SEITZ, Justice:
       The appellant, Donta E. Vickers, filed this appeal from the Superior Court’s

sentence, declaring Vickers a habitual offender under the Delaware Criminal

Code. 1    Vickers argues that the Superior Court erred as a matter of law in

sentencing him to life in prison as a habitual offender because the first of his three

predicate felony convictions occurred when he was a juvenile. We find no merit in

the appeal and therefore affirm.

                   I.     FACTS AND PROCEDURAL HISTORY

       The victim of the crimes (the “robbery victim”) rented a room in a house on

Kimmey Street in Georgetown, Delaware. 2 Around 10:30 p.m. on August 15,

2013, the robbery victim received a telephone call from Lenetta Long, who the

robbery victim knew to be a prostitute using the name “Black Nada.” 3 He invited

her over, and sometime after midnight, after locking the front door of the house

and his room door, the two had sex in the bedroom, but were interrupted when

Long answered a call on her cell phone. 4 The robbery victim spoke limited

English and did not understand what was said during the call. 5 After the call Long

got up, said she had to use the bathroom, and left the bedroom. 6 When she

returned, the robbery victim locked the bedroom door and they resumed having

sex.
1
  11 Del. C. § 4214(b).
2
  A-16.
3
  A-17-19, 38, 74.
4
  A-19-20.
5
  A-20-21.
6
  A-21.
                                          2
       A few minutes later, someone broke down the bedroom door and Vickers

entered the bedroom and pointed a gun at the robbery victim, demanding money. 7

Vickers had covered his face and head with a black cloth, but Vickers’ face could

still be seen by the robbery victim in the bedroom light. As the robbery victim

testified, he could see “his face and his lips and everything.” 8

       Vickers also had distinctively large eyes, so the robbery victim recognized

him right away as a former co-worker and Georgetown resident. 9 The robbery

victim saw a second man hiding outside the bedroom, but did not see the man’s

face. 10 He identified both men as “black American” and dressed in black. 11 The

robbery victim described Vickers as “five-ten and skinny” and the other man as

“big and strong.” 12

       The robbery victim told Vickers there was money in his pants, and begged

Vickers not to shoot him. 13 Vickers put the gun to the robbery victim’s head, took

his pants and then looked at Long, who gestured towards a piggy bank. 14 Vickers

then shot the robbery victim in the right leg, just above the knee, took the pants and

piggy bank, and left the house with Long. 15 The robbery victim had about $500 in


7
  A-22-23.
8
  A-26-27, 67.
9
  A-27, 67.
10
   A-25-26.
11
   Id.
12
   Id.
13
   A-23.
14
   A-24-25.
15
   A-29, 31; B-1.
                                           3
his pants and about $60 in the piggy bank. 16 He wrapped his leg with a towel to

staunch the bleeding, left the house, and saw three people running towards the

Perdue plant on Savannah Drive, where the robbery victim knew Vickers lived in a

house owned by Long’s mother. 17 Long lived in the same house.

       The robbery victim called 911 and the police arrived. He told the police that

he knew the shooter and where he lived. 18 The police drove him to the house on

Savannah Drive where the robbery victim identified Vickers as the shooter. 19 The

police took Vickers into custody and recorded a statement from Vickers where he

conceded that he likely had gunshot residue on his hands; 20 he was at the crime

scene; he held the gun that shot the robbery victim; 21 but according to his story, the

actual shooter handed the gun to Vickers after the shooting so Vickers could feel

how hot the gun was.22 The robbery victim suffered a permanent injury as a result

of the gunshot wound to his leg.23

       Following grand jury indictments and a mistrial granted to allow Vickers to

explore potentially exculpatory evidence that came to light during a first trial, on

16
   A-25, 31.
17
   A-28-31, 74-75.
18
   A-31, 32.
19
   A-32-33. The robbery victim identified Vickers as “the one with the big eyes.” Id. The police
also executed a search warrant on the house and found two dark-colored “doo-rags” near the bed
in Vickers’ room. A-77-78. A police dog trained to track the freshest scent tracked a scent from
the robbery victim’s house to the junkyard across the street from the Savannah Drive house, but
the search was halted short of the house for safety reasons. A-73, 84; B-2-6.
20
   State’s Trial Exhibit 15 at 4:16:51.
21
   Id. at 4:14:40.
22
   Id. at 4:47:35.
23
   A-33-35.
                                                 4
June 10, 2014, after a two day trial, a Sussex County jury found Vickers guilty of

assault second degree as a lesser-included offense of assault first degree;24

attempted robbery first degree; 25 home invasion; 26 conspiracy second degree;27 and

three counts of possession of a firearm during the commission of a felony. 28

       On August 8, 2014, the State filed a motion to sentence Vickers as a habitual

offender under 11 Del. C. § 4214(b). The Superior Court granted the motion and

sentenced Vickers to the following:            attempted robbery first degree – life

imprisonment at Level 5 with credit for 359 days previously served; home invasion

– life imprisonment at Level V; assault second degree – 10 years at Level V with

credit for 359 days previously served; and conspiracy second degree – 2 years at

Level V; and three counts of possession of a firearm during the commission of a

felony – life imprisonment at Level 5.29

       Vickers does not dispute that he has been convicted of three violent felonies

on three separate occasions – Arson First Degree in 1995; 30 Robbery First Degree

in 1998;31 and five of the felony convictions in the case now before us. Vickers

also concedes that he was charged, convicted, and sentenced as an adult in



24
   11 Del. C. §§ 612; 613.
25
   Id. at §§ 531 and 832.
26
   Id. at § 826A.
27
   Id. at § 512.
28
   Id. at § 1447A.
29
   A-150-51.
30
   A-114-15.
31
   A-110-112.
                                           5
Superior Court for the arson offense. 32 Nor does he dispute that, at least as to all of

the convictions, the requirements of the habitual offender statute, 11 Del. C.

§ 4214(b),33 have been met by these offenses.

       Instead, Vickers argues on appeal that his conviction for the first of the three

violent felony offenses, arson first degree, should not be counted under the habitual

offender statute because he was a juvenile at the time of the offense and

conviction.34 According to Vickers, the Supreme Court of the United States has

recognized on several occasions in the last ten years that juveniles have diminished

responsibility, and mandatory sentencing schemes violate due process when the

age of the offender at the time of the commission of the crime cannot be

considered at the time of sentencing.              Following the “tenets” of these cases,

Vickers argues that his right to due process has been violated by counting the first

conviction, which occurred while he was a juvenile.



32
   A-123.
33
   “Any person who has been 2 times convicted of a felony or an attempt to commit a felony
hereinafter specifically named, under the laws of this State, and/or any other state, United States
or any territory of the United States, and who shall thereafter be convicted of a subsequent felony
hereinafter specifically named, or an attempt to commit such specific felony, is declared to be an
habitual criminal, and the court in which such third or subsequent conviction is had, in imposing
sentence, shall impose a life sentence upon the person so convicted unless the subsequent felony
conviction requires or allows and results in the imposition of capital punishment. Such sentence
shall not be subject to the probation or parole provisions of Chapter 43 of this title.” The statute
goes on to list the felonies that qualify as felonies subject to 11 Del. C. § 4214(b). All of the
felonies listed above qualify as felonies under the statute.
34
   Vickers was born June 6, 1977. A-123. The incident leading to his conviction for Arson First
Degree occurred on August 29, 1994. A-105. A jury convicted him of the arson offense on
January 10, 1995, and the Superior Court sentenced him on February 17, 1995. Id. A juvenile,
or child, is a person who has not reached his or her eighteenth birthday. 10 Del C. § 901(4).
                                                    6
       The State responds that this Court has held that a juvenile’s prior felony

convictions are admissible as proof of habitual offender status in adult criminal

proceedings. Unlike the federal cases cited by Vickers, the State argues that

Vickers was sentenced to life in prison as an adult. A due process violation is

possible, the State contends, only where juveniles are being sentenced for juvenile

offenses.

       We review the Superior Court’s determination of law and the constitutional

questions raised on appeal de novo.35

                                    II.    ANALYSIS

       The narrow issue before the Court is whether Vickers’ first violent felony

offense and conviction, both of which occurred when he was a juvenile, can be

counted towards the three violent felony convictions necessary to sentence him as

a habitual criminal under 11 Del. C. § 4214(b). As the State points out, we have

travelled this road before, and have found that a juvenile’s prior felony convictions

for offenses occurring while a juvenile are admissible as proof of habitual offender

status.36

       Vickers only new argument relies on more recent United States Supreme

Court cases that require that juvenile offenses be treated differently under the Eight


35
   State v. Guthman, 619 A.2d 1175, 1177 (Del. 1993); Grace v. State, 658 A.2d 1011, 1015
(Del. 1995).
36
   Summers v. State, 760 A.2d 163 (Del. 2000) (Table); Stone v. State, 1994 WL 276984 at *2
(Del. June 14, 1994) (citing Fletcher v. State, 409 A.2d 1254 (Del. 1979).
                                                  7
and Fourteenth Amendment to the United States Constitution. But none of these

cases is helpful to Vickers in the context of habitual offender sentences.

         In Roper v. Simmons, the United States Supreme Court held that the Eighth

and Fourteenth Amendments barred execution of persons under age 18 at the time

of the capital offenses. 37 The Court found that a child’s character is not as well

formed as an adult’s, and thus, his actions less likely to be evidence of irretrievable

depravity. 38 In Graham v. Florida, the Supreme Court prohibited life without

parole sentences on juvenile offenders who did not commit homicide. 39 Once

again the Court relied on the lessened culpability juveniles have and are therefore

less deserving of the most serious forms of punishment, including life in prison.40

And in Miller v. Alabama, the Court determined that mandatory life without parole

for juvenile offenders violated the Eighth Amendment. 41

         In each of these Supreme Court cases, the Court imposed severe sentences

on juvenile offenders for crimes committed as juveniles.          Here, Vickers was

sentenced as an adult for crimes committed as an adult much later in life. The

sentencing leniency required by the Supreme Court for criminal conduct in a

juvenile’s formative years has no application to an adult being sentenced as an

adult.

37
   543 U.S. 551, 578 (2005).
38
   Id. at 570.
39
   560 U.S. 48, 82 (2010).
40
   Id. at 50.
41
   132 S. Ct. 2455, 2460 (2012).
                                          8
       When faced with similar arguments under these Supreme Court cases, the

federal courts have found that juvenile offenses can be used to determine the

criminal history of adults.42 In essence, courts consider it an enhanced punishment

for the current offense, not an additional punishment for the earlier juvenile

offense. As the Tenth Circuit has explained, “[u]nlike defendants who receive

severe penalties for juvenile offenses and are thus denied ‘a chance to demonstrate

growth and maturity,’… recidivists have been given an opportunity to demonstrate

rehabilitation, but have elected to continue a course of illegal conduct.” 43

       Vickers committed the most recent felonies at the age of 36. Before his last

conviction, he had the chance to rehabilitate himself. Having failed to do so, the

Superior Court correctly considered Vickers’ prior youthful offenses under the

habitual criminal statute as he continued his illegal activity into adulthood.44

42
   United States. v. Hoffman, 710 F.3d 1228, 1232 (11th Cir. 2013); United States v. Hunter, 735
F.3d 172, 173 (4th Cir. 2013); United States v. Edwards, 734 F.3d 850, 852-53 (9th Cir. 2013).
43
   United States v. Orona, 724 F.3d 1297, 1308 (10th Cir. 2013) (quoting Graham, 560 U.S. at
73); see also United States. v. Rich, 708 F.3d 1135, 1141 (10th Cir. 2013) (“Regardless of the
inability of minors to fully understand the consequences of their actions, adults facing enhanced
sentences based, only in part, on acts committed as juveniles have had the opportunity to better
understand those consequences but have chosen instead to continue to offend.”); United States v.
Banks, 679 F.3d 505, 508 (6th Cir. 2012) (distinguishing Graham in relation to a 33-year-old
offender who “remained fully culpable as an adult for his violation and fully capable of
appreciating that his earlier criminal history could enhance his punishment”); United States v.
Scott, 610 F.3d 1009, 1018 (8th Cir. 2010) (reasoning that the defendant was 25-years old at the
time he committed his instant offense and Graham “did not call into question the
constitutionality of using prior convictions, juvenile or otherwise, to enhance the sentence of a
convicted adult”).
44
   See Hoffman, 710 F.3d at 1232; see also Edwards, 734 F.3d at 852-53 (“We reject
[defendant]’s contention and hold that these recent Eighth Amendment cases [Roper, Graham,
and Miller] do not prevent the district court from assigning criminal history points for juvenile
convictions. In so holding, we, join the unanimous view of our sister circuits, which have
affirmed the use of juvenile convictions to determine criminal history of adults.”) (citing United
                                                  9
                                  III.    CONCLUSION

       The Superior Court did not err as a matter of law when it sentenced Vickers

as a habitual offender under 11 Del. C. § 4214(b). The judgment of the Superior

Court is AFFIRMED.




States v. Graham, 622 F.3d 445, 461-64 (6th Cir. 2010); United States v. Scott, 610 F.3d 1009,
1018 (8th Cir. 2010); United States v. Mays, 466 F.3d 335, 339-40 (5th Cir. 2006); United States
v. Salahuddin, 509 F.3d 858, 863-64 (7th Cir. 2007); United States v. Wilks, 464 F.3d 1240,
1242-43 (11th Cir. 2006)).
                                               10
