IN THE SUPERIOR COURT OF THE STATE OF DELAWARE

S TATE OF DELAWARE )

)

v. ) ID No. 2009007545

)

UNIQUE SMITH

, )

)

Defendant. )

Submitted: March 16, 2022

Decided: April 18 , 2022

Upon Defendant ’s Motion for Reduction of Sentence

DENIED

MEMORANDUM OPINION AND O RDER

Michael H. Tipton, Esquire, Deputy Attorney General, Department of Justice, 1 3

The Circle, Georgetown, DE 19 947 , Attorney for State of Delaware.

Benjamin S. Gifford IV, Esquire, 1 4 Ashley Place, Wilmington, DE 19 804 , Attorney

for Defendant.

K ARSNITZ, R

. J.1

On October 6, 2021, Unique Smith (“Smith” or “Movant”) came before me

and, after a thorough colloquy, entered a guilty plea to two felony charges:

Manslaughter and Possession of a Firearm During the Commission of a Felon y

( “PFDCF”)

. The parties agreed to a presentence investigation and open

sentencing. The State of Delaware (the “State”) agreed to cap its recommendation

for L evel 5 incarceration at 50 years

, suspended after 25 years at L evel 5 for

various degrees of probation. I ordered a presentence investigation report, and

Movant was scheduled to be sentenced on November 19, 2021. Counsel for

Movant provided the presentence officer with a forensic evaluation of Movant

conducted by Dr. Jordan Bell (the “Bell Report”)

. T he Bell Report was attached

to M ovant’s presentence report.

I held a sentencing hearing on November 19, 2021. At sentencing, Movant’s

counsel advocated for a total sentence of 5 years of incarceration at Level 5. The

State advocated for a cumulative sentence of 25 years of incarceration at Level 5. I

sentenced Movant to Level 5 incarceration for 50 years , suspended after a

cumulative 22 years at L evel 5 for descending levels of probation. I also imposed2

v arious fines, costs, and other conditions. In doing so, I articulated six (6)

aggravating factors : (1) Lack of Amenability to Lesser Sanctions; (2) Custody

Status at Time of Offense; (3) Undue Depreciation of the Offense; (4)

Vulnerability of Victim; (5) Repetitive Criminal Conduct; and (6) Excessive

Cruelty.

On February 17, 2022, Movant timely filed 1 his first Motion for Reduction of

Sentence (the “Motion”) under Superior Court Criminal Rule 35(b) , asking that I

reduce his sentence to between 8 and 12 years. On March 16, 2022, the State filed

its Response to the Motion , asking that the sentence remain the same

. This is my

ruling on the Motion.

SENTAC Guidelines

Defendant asserts that I erroneously exceeded the presumptive guidelines

for Manslaughter and P FDCF . The range of sentences for Movant’s

Manslaughter and P FDCF convictions are from 5 years to 50 years at L evel 5.

As discussed more fully below, I imposed a legal sentence based upon the facts and

1 Within 90 days after imposition of sentence under Super. Ct. Crim. R. 35(b)

.3

circumstances surrounding Movant’s crime s

.

In support of his Motion, Defendant argues that I violated several provisions

of the Delaware Sentencing Accountability Commission ("SENTAC"), which

was created with the purpose of establishing a system in Delaware "that

emphasizes accountability of the offender to the criminal justice system and

accountability of the criminal justice system to the public." 2 To fulfill that purpose,

SENTAC establishe s sentencing guidelines located within the Benchbook. 3 The

presumptive sentences established by SENTAC "are based on the classification

of the offense, and whether it is violent or non

- violent in nature." 4 The

Benchbook also enumerates specific aggravating and mitigating factors that I should

consider when imposing a sentence

. 5 While the "standard sentence range is

presumed to be appropriate for the typical criminal case," the existence of such

2 Delaware Sentencing Accountability Commission Benchbook, at 21 (2020) ("the

Benchbook"). The Benchbook can be located at https://cjc.delaware.gov/wpcontent/uploads/sites/6l/2020/02/Benchbook

- 2020F. pdf.

3 The Benchbook at 21.

4 Id

. 5 The Benchbook at 110

- 14.4

factors can justify upward or downward departures from those guidelines. 6 Each

of the enumerated aggravating and mitigating factors include s definitions

promulgated by SENTAC. 7 The guidelines established by SENTAC are presumptive

only , and not binding on the sentencing judge. 8

There is no constitutional or statutor y right under Delaware law to appeal a

criminal punishment on the sole basis that it de viates from the SENTAC

sentencing guidelines." 9 "[T]he trial court must explain its reasons for doing so,

but it is authorized to exceed the SENTAC guidelines without making any factual

findings beyond those reflected in the jury's verdict," 10 or, as in this case, the

charges to which the Defendant p l ed guilty. While it is within my discretion to

reduce a criminal sentence, justice is not served by a redundant re assessment of

the facts known and available to me at the time of sentencing. 11 While Movant is

6 The Benchbook at 110.

7 The Benchbook at 112

- 14.

8 Walters v. State, 2013 WL 4540040 at *1 (Del. Supr. Aug. 23, 2013).

9 Siple v. S l ate, 7 01 A

. 2d 79, 83 (De l. 1997)

. 10 Id

. 11 See In re Bridde l le, 2004 WL 34400 6 (Del. Super. Feb. 17, 2004 ) (noting that "[t]here

must be some finality to cases.").5

displeased with the sentence imposed, no new or different facts have been

offered that were not known to the parties at the time of sentencing.

Aggravating Fac t ors

Movant asserts that I improperly relied on three aggravating factors:

Vulnerability of Victim

, Repetitive Criminal Conduct

, and Excessive Cruelty.

Vulnerability of Victim

With respect to Vulnerability, I considered that the victim was defenseless

and Movant shot him in the back. The Benchbook defines the vulnerability factor

as follows: "The Defendant knew, or should have known, that the victim of the

offense was particularly vulnerable or incapable of resistance due to extreme youth,

advanced age, disability, or ill health

. ” 12 Although the victim may not have been

extremely young or old, physically handicapped, or sick, in my view he certainly

was vulnerable because he was incapacitated and could not resist.

Repetitive Criminal Conduct

12 The Benchbook at 112.6

With respect to Repetitive Criminal Conduct, The Benchbook defines such

conduct as a "conviction or adjudication for the same or similar offense on two or

more previous, separate occasions." 13 The Benchbook also provides that when

sentencing on more than one offense, "prior criminal history should be

considered only in determining the guideline for the 'lead' or most serious

offense. Sentences for other current charges shall be calculated based on zero

criminal history." 14 The Benchbook f u r t h e r states that "[ f]or the purposes of

sentencing, only those offenses adjudicated at age 14 or older shall be counted in

prior history." 15

Movant argues that the governing offense is the most serious offense, in

this case, P FDCF , because it carries a longer minimum mandatory sentence than

Manslaughter, and that there i s only one such incident of similar conduct. One

similar incident was adjudicated in Family Court when Movant was only 13

13 Id

. 14 The Benchbook at 26, Policy 7.

15 The Benchbook at 25, Policy 3.7

years old, and therefore does not count. In another, the prosecution entered a

nolle prosequi , and therefore it is not a conviction which counts. This leaves

only one conviction for a similar offense, rather than the requisite two.

Although Movant may not technically meet the definition of Repetitive

Criminal Conduct, there are cer tainly similar charges (albeit not countable

convictions). In any event, even if this aggravating factor is completely

disregarded, I would not have imposed a lesser sentence.

Excessive Cruelty

Movant asserts extensively that I misjudged the nature of the confrontation

between Movant and the victim, as evidenced by a surveillance video of the

altercation. At sentencing I did not, and as I write this decision I do not, perceive

the need to view t his video, which I am told is grainy and, in any event, whose view

is blocked when the fatal shot is fired. Movant argues that I should have viewed the

video at sentencing as the “best evidence” of the crime. S entencing, however, is not

the time for Movant to attempt to relitigate the facts of his case. Ignoring his guilty8

plea to all elements of the crimes, and the fulsome colloquy surrounding that plea,

Movant now argues, based on extrinsi c evidence, that the victim unquestionably

was the instigator , that Movant attempted to retreat from the victim before any

physicality took place , and that the shooting was wholly accidental.

I stand by my statement at sentencing:

I think the best evidence I have here as to what happened is that there

was this altercation and Mr. Akins was assaulted

, and he may

, or may

not

, but he may have

, initiated this. Frankly, that doesn't matter a whole

lot to me at this point because even if he did, it doesn't justify what

happened to him. What is clea r to me is that Mr. Akins was in a

defenseless position when you, Mr. Smith, approached him and shot

him in the back.

Mr. Gifford indicated to me that this shouldn't be a case that shocks the

conscience of the Court. This shocks my conscience. Again, I ask

myself what really happened here and why did it. This was a brutal

crime. It was an execution. 16

If this does not meet the definition of “excessive cruelty ,” I do not know what does.

The Delaware Supreme Court has interpreted the sentence rationale given

by a sentencing Judge as a proper overall assessment of the defendant’s

16 Transcript of Sentence Hearing dated November 19, 2021, at 23

- 24.9

tumultuous behavior. 17 The Supreme Court viewed the sentencing Court's

assessment as a “single aggravating circumstance rather than as a mechanistic

adding up of SENTAC aggravators that result in a sentence of a given length." 18 The

Court came to this conclusion because the bulk of the sentencing Court's statement

was about the "overall assessment of Davenport's tumultuous relationship with

Wilson." 19

My statement at Movant’s sentencing (see previous page ) was related to

the pointless nature of the shooting. As in Davenport

, I listed the aggravating

factors that I considered, but the list it self "was a matter of rhetorical emphasis

reinforcing the Superior Court's major point," 20 which was the pointless and

violent killing of a defenseless victim.

Mitigating Factors

17 Davenport v. State, 150 A.3d 274 (Table) (Del. 2016).

18 Id

. 19 Id

. 20 Id

.10

Movant also asserts that I sentenced him with a closed mind, in violation of

Superior Court Criminal Rule 32(a), in that I did not consider mitigating factors,

primarily those detailed in the Bell Report , including the following:

Nondevelopmental Factors

Parenting an d Family Factors

Community Factors

Disturbed Trajectory Factors

Protective Factors

The Delaware Supreme Court has held that Rule 32(a) "requires, by

necessary implication, that before finally reaching a decision as to sentence, the

sentencing judge have an open mind at least to the extent of receiving all

information bearing on the questions of mitigation." 21 That Court has also stated

that a judge sentences with a closed mind when the sentence is based on a

preconceived bias without consideration of the nature of the offense or the

21 Bailey v. State, 450 A.2d 400,406 ( Del. 1982) (quoting Osburn v. State, 224 A.2d 52, 53

( Del. 1966)).11

character of the defendant. 22 "A judge must have an open mind for receiving all

information related to the question of mitigation." 23

Movant mischaracterizes my consideration of the mitigating factors.

Movant’s counsel provided the presentence investigator with the Bell Report, which

was then summarized in the presentence investigation report and attached in full as

an addendum to the report

. In fact, I read the entire Bell Report as an integral part

of the presentence investigation. I took all the mitigating factors described in detail

by Dr. Bell into account when imposing sentence on Movant.

I spent a significant portion of my sentencing statement addressing the

nature of the shooting. I addressed Movant’s character when I found Movant to

pose a danger to the community. When I began my sentencing statement, I

referenced the presentencing investigation and how I relied upon it in crafting my

sentence.

22 Ellerbe v. State, 755 A.2d 387 (Del. 2000).

23 Johnson v. State, 143 A. 3 d 1 (Del. 2016 ) (Table).12

During sentencing argument, M ovant’s counsel again focused on the

mitigating factors . I listened to those statements . I allowed Movant to speak to

me directly. Movant had a prewritten letter read on h is behalf by his counsel

. I then

gave Movant another opportunity to address m e , w h i c h h e chose not to do. I

thanked a l l parties for their comments and indicated t h a t they were helpful.

Considering all relevant facts and viewing them rationally is not bias, but is an

exercise of judgment.

Reliance on False, Impermissible, or Unreliable Facts

Finally, Movant asserts that, contrary to Delaware law, I impose d a sentence

that "is based on factual predicates which are false, impermissible, or lack

minimal reliability." 24 He asserts that I “ inadvertently ” imposed the

sentence on him relying upon misperceived facts about the events that led to the

24 Whittle v. State, 2021 WL 3578625 at *2 (Del. Supr. Aug. 12, 2021); Thomas v. State, 2020

WL 3259486 at *1 (Del. Supr. June 16, 2020) (citing Kurzmann v. State, 903 A.2d 702, 714

(Del. 2006)).13

death of the victim, thus leading to the imposition of a harsher sentence.

My sentence was assuredly not “inadvertent.” I relied on the presentence

investigation, which contained police reports, witness statements, crime photos,

and the autopsy report

, when crafting M ovant’s sentence

. I also relied on the

argument s provided by the part ies at the sentencing hearing. These items meet

the minimum indicia of reliability and have not been proven to be demonstrably

false.

However, a s discussed above, Movant asserts that I misjudged the nature of

the confrontation between Movant and the victim, as evidenced by a surveillance

video of the altercation. Movant now argues, based on this video, that the victim

unquestionably was the instigator, that Movant attempted to retreat from the

victim before any physicality took place, and that the shooting was wholly

accidental. In my view, the video does not prove that I relied on demonstrably

false facts. I am told by counsel that the video, which I did not rel y on when making

my sentencing decision, depicts a fight between the parties. Though it shows the14

steps leading up to the shooting and Movant’s actions after the shooting, the

video is inconclusive because the cro wd ’ s position during the shooting blocks

any view of the shooting itself

. Movant interpret s the video in the light most

favorable to him. This interpretation of the video is not supported by the

eyewitness testimony and other actions of Movant. In my view, t he video is not

proof that the police reports and eyewitness statements in the presentence

investigation u p o n w h i c h I r e l i e d a r e demonstrably false

.

The Delaware Supreme Court has stated : “ We review a sentence

determination on appeal only to determine whether it is within the applicable

statutory limits and whether it is based upon factual predicates which are false or

impermissible, or which lack minimal reliability, judicial vindictiveness or bias,

or a closed mind." 25 And further, "In Delaware, the trial court has broad discretion

in determining which information to rely on in imposing a sentence, including

information pertaining to the defendant's personal history and behavior, the

25 Kurzmann v. State 903 A.2d 702, 714 (Del. 2 0 0 6 ).15

presentencing report, and other sources." 26 "Thus, in reviewing a sentence within

statutory limits, this Court will not find error of law or abuse of discretion unless

it is clear from the record below that a sentence has been imposed on the basis of

demonstrably false information or information lacking a minimal indicium of

reliability. ” 27

Under these standards, my sentence was not based on f alse, i mpermissible, or

u nreliable f

acts

.

For the reasons stated above, I DENY Defendant’s Motion for Reduction of

Sentence

.

IT IS SO ORDERED.

/s/ Craig A. Karsnitz

cc: Prothonotary

26 Ma y es v

. State

, 604 A

. 2d 839, 842 (Del. 1992).

27 Mayes v. State, 604 A.2d at 842 (quoting Ward v. State, 567 A.2d 1296, 1297 ( Del. 1989)).