IN THE SUPERIOR COURT OF THE STATE OF DELAWARE

STATE 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 ORDER

Michael H. Tipton, Esquire, Deputy Attorney General, Department of Justice, 13 

The Circle, Georgetown, DE 19947, Attorney for State of Delaware.

Benjamin S. Gifford IV, Esquire, 14 Ashley Place, Wilmington, DE 19804, Attorney 

for Defendant.

KARSNITZ, 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 Felony

(“PFDCF”). The parties agreed to a presentence investigation and open 

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

for Level 5 incarceration at 50 years, suspended after 25 years at Level 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”). The Bell Report was attached 

to Movant’s presentence report.

I held a sentencing hearing on November 19, 2021. Atsentencing, 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 Level 5 for descending levels of probation. I also imposed 
2

various 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 filed1 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 PFDCF. The range of sentences for Movant’s 

Manslaughter and PFDCF convictions are from 5 years to 50 years at Level 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 crimes.

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 establishes 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

2Delaware 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 includes 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 orstatutory right under Delaware law to appeal a

criminal punishment on the sole basis that it deviates 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 pled guilty. While it is within my discretion to 

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

the facts known and available to me at the time ofsentencing.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. Slate, 701 A.2d 79, 83 (Del.1997).

10 Id.

11 See In re Briddelle, 2004 WL 344006 (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 Factors

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, PFDCF, because it carries a longer minimum mandatory sentence than 

Manslaughter, and that there is 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 certainly 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 this 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. Sentencing, however, is not 

the time for Movant to attempt to relitigate the facts of his case. Ignoring his guilty 
8

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

Movant now argues, based on extrinsic 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 clear 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 itself "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 and 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.3d 1 (Del. 2016) (Table).
12

During sentencing argument, Movant’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 his 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 imposed 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 Movant’s sentence. I also relied on the

arguments provided by the parties at the sentencing hearing. These items meet

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

false.

However, as 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 rely on when making 

my sentencing decision, depicts a fight between the parties. Though it shows the
14

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

video is inconclusive because the crowd’s position during the shooting blocks 

any view of the shooting itself. Movant interprets 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, the 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

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

presentencing report, and othersources."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 false, impermissible, or 

unreliable facts.

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 Mayes 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)).