Parker v. State ( 2016 )

IN THE SUPREME COURT OF THE STATE OF DELAWARE
MYRON PARKER, § No. 375, 2015
§
Defendant Below-Appellant, § Court Below:
§
v. § Superior Court of the
§ State of Delaware
STATE OF DELAWARE, §
§ Cr. I.D. No. 1403018832A
Plaintiff Below-Appellee. §
Submitted: February 10, 2016
Decided: February 18, 2016
Before STRINE, Chief Justice; HOLLAND and VALIHURA, Justices.
ORDER
This 18th day of February 2016, upon consideration of the briefs of the parties and
the record below, it appears to the Court that:
(1) The appellant, Myron Parker (“Parker”), filed this appeal from the Superior
Court’s June 24, 2015 Sentence Order. He requests that this Court vacate his sentence
and remand his case for resentencing. On appeal, Parker asserts that the sentencing judge
violated his right to allocution as provided by Superior Court Criminal Rule 32(a). He
also contends that the judge exhibited a closed mind when indicating a sentence prior to
affording him allocution. We disagree and AFFIRM.
(2) On October 28, 2012, Parker was driving through a trailer park in Newark,
Delaware without his headlights illuminated. He was a resident of the development. In
the area of 177 Garnet Street, Parker exited his vehicle and vomited on the ground. New
1
Castle County Police were called with a report of a man vomiting outside of his “dark
colored” vehicle with registration number “39822.”1 A “verbal altercation” ensued
between Parker and the individuals at 177 Garnet Street, during which Parker stated he
would “be back with friends” and “burn their house down.”2 Accompanied by another
person, Parker returned approximately ten minutes later. Parker and his companion
engaged in a physical altercation with Michael Leger (“Leger”), during which Leger was
fatally stabbed with an unidentified object. After attacking Leger, Parker and his co-
conspirator fled the scene of the crime.
(3) On March 27, 2014, Detective John Ziemba obtained a warrant for Parker’s
arrest. The police arrested Parker two days later. Subsequently, the State and Parker
reached a plea agreement, dated December 16, 2014, for Criminally Negligent
Homicide.3
(4) On June 24, 2015, the Superior Court held a sentencing hearing. The
prosecutor presented argument in support of the State’s recommendation of a sentence of
eight years, highlighting Parker’s prior criminal history, failure to take responsibility for
1
Investigators later determined that a black Acura, with Delaware registration 392388, was
registered to Parker’s mother.
2
When the police arrived, they were informed that the individual involved in the verbal
altercation was the same individual who vomited outside of his vehicle. An evidence detective
collected swabs from the area containing the vomit and submitted them to the Medical
Examiner’s Office to obtain a DNA profile on the suspect. The DNA analysis performed by the
Medical Examiner’s Office indicated that the suspect was Parker. According to Detective John
Ziemba’s affidavit in support of the warrant issued for Parker’s arrest, Parker was arrested in
New Jersey for Resisting Arrest by Physical Force or Violence and his DNA was collected in
connection with that incident.
3
The State originally secured a grand jury indictment charging Parker with Manslaughter,
Possession of a Deadly Weapon During the Commission of a Felony, Possession or Control of a
Deadly Weapon by a Person Prohibited, and Conspiracy Second Degree.
2
Leger’s death,4 and supposed inability to recall the identity of his co-conspirator. The
Superior Court also heard statements from Leger’s father and mother. The court then
heard argument from Parker’s counsel concerning Parker’s acceptance of responsibility,
his supportive family, the “minimal and remote” nature of Parker’s prior criminal history,
and his history of full-time employment. Defense counsel requested a sentence “between
four and five years,” conceding that the “presumptive sentence of two years . . . would
unduly depreciate the offense here.”
(5) Parker was sentenced to eight years at Level V under 11 Del. C. § 4204(k),
followed by six months at Level III under 11 Del. C. § 4204(l). In sentencing Parker, the
Superior Court discussed its impression that Parker lacked remorse, the “very substantial
victim impact” flowing from the crime, and Parker’s criminal history. 5 Subsequent to
setting forth its sentencing rationale, the Superior Court stated:
[I]t seems fairly clear at least the defendant knows who else is involved in
this. And he’s made a conscious decision to shield that person, which
reflects his not taking full responsibility for what he has done. And it
reflects[,] at least at one level[,] indifference to the victim’s family. For
that reason[,] the [Superior] Court is going to impose the eight years
requested by the State for all those reasons. And the Court is prepared to
sentence, unless there’s anything else.
Rise, Mr. Parker.
4
The prosecutor read from Parker’s presentence statement, which provided: “I really don’t
remember that night. Apparently, I was there because they matched my DNA with the DNA in
some vomit. I drank pretty heavily. At the time, I may have blacked out from the alcohol. I
don’t know what to say. I feel bad about it. What do you say in this type of situation.” A14 (Tr.
6:4-9).
5
The judge also articulated his disbelief of Parker’s asserted sympathy for the victim’s family.
The judge noted that it was “difficult to take those statements seriously when [Parker] seems to
be protecting the other person who was involved in this incident. That is a cruel thing to do to
the victim’s family, at least that’s how the [Superior] Court takes it.”
3
(6) After the Superior Court indicated that it intended to impose the maximum
sentence, Parker’s counsel requested a sidebar to note that Parker had not been permitted
allocution. The Superior Court acknowledged the procedural shortcoming and sought to
rectify the error immediately.6 After the sidebar, the judge stated that Parker’s counsel
“correctly pointed out that I had indicated that the [Superior] Court intended to impose
the maximum sentence before Mr. Parker had the opportunity to speak.” The Superior
Court continued:
Mr. Parker is perfectly able at this point to speak to the [Superior]
Court. And if he can say something that undermines what my
thinking was as I announced it, I am perfectly willing to listen to
what he has to say. For example, he could tell me the name of the
person who was involved in this terrible incident. He also can speak
6
The following exchange took place during the sidebar:
Counsel: Your Honor, I don’t know quite how to raise this. I’ll just raise it.
It appears that the Court has made up its mind about the sentence --
The Court: I understand your concern. Does the defendant want to speak? I
absolutely want to hear what he has to say. And that thought
crossed my mind as I was speaking. I think the best way and the
honest way to review what’s going on -- everybody has heard my
thinking. He’s entitled now to speak and give me reasons why my
thinking is incorrect. And I’m perfectly willing to hear them. I
certainly am going to redo the sentence if he wants to tell me who
the other person is. But I’m also certainly willing to revisit it if he
has any other reasons to suggest that if the way that I’m looking at
this is wrong and I’m incorrect.
...
Well, I’ll make a short record aloud about this. Because you’re
absolutely correct that he was entitled to speak before I made up
my mind. And I am absolutely willing to hear him speak now and
to reconsider what I said if he can say something that convinces me
that my thinking is misguided.
A18 (Tr. 21:7-22:11).
4
to some of the other things that I spoke about. And I want to
emphasize that if he has something to say to me that calls into
question what I said a few moments ago, I am perfectly willing to
reconsider what the sentence in his case ought to be.
(7) Parker then addressed the Superior Court.7 Following Parker’s statement,
the judge formally sentenced Parker to the statutory maximum. In doing so, the Superior
Court retained jurisdiction and stated that it would reconsider Parker’s sentence if he
identified his co-conspirator or otherwise showed signs of rehabilitation while
incarcerated.
(8) “Delaware decisional law has confirmed the right of a defendant to speak in
allocution.”8 “[W]e have stated that ‘[a]ny failure of a trial court to adhere to the right [of
allocution] is an error which is neither jurisdictional nor constitutional [and] not a
fundamental defect which inherently results in a complete miscarriage of justice so as to
constitute a denial of a fair trial.’”9 In Delaware, the common law right of a criminal
7
In whole, Parker’s allocution statement was as follows:
Your Honor, I do not recall the night of this incident. I know the Court
doesn’t believe me. That’s understandable. I know the family probably
has strong hatred for me. That’s understandable as well. But I would like
to apologize for their loss. It’s really nothing I can say to make the family
feel any better. I do accept whatever you give me, whatever time you give
me. I accept the responsibility of the situation.
A18 (Tr. 23:18-24:3).
8
See Shelton v. State, 744 A.2d 465, 495 (Del. 2000), cert. denied, 530 U.S. 1218 (2000)
(citations omitted).
9
Id. (quoting DeShields v. State, 1993 WL 366558, at *1 (Del. Aug. 3, 1993)) (internal quotation
marks omitted). See also DeShields, 1993 WL 366558, at *1 (“The law is further well
established that the common law right of allocution is not a right of constitutional dimension, at
least in the absence of a request to exercise that right.”).
5
defendant to allocution is set forth in Rule 32(a)(1)(C) of the Superior Court Rules of
Criminal Procedure.
(9) Superior Court Criminal Rule 32 states that, “[b]efore imposing sentence,
the court shall . . . [a]ddress the defendant personally and determine if the defendant
wishes to make a statement and to present any information in mitigation of the
sentence.”10 “[A]s a matter of good judicial administration,” trial judges should
“unambiguously address themselves to the defendant” and “leave no room for doubt that
the defendant has been issued a personal invitation to speak prior to sentencing.”11
(10) While the Superior Court’s allocution procedure in this case did not comply
with Rule 32, and was an unfortunate error, resentencing is not required. Although the
Superior Court did not personally address Parker before indicating a sentence, it did
permit Parker to speak upon request, and it indicated a willingness to reconsider the
sentence depending upon Parker’s statements. Thus, Parker received the opportunity to
express remorse and present mitigating information before the Superior Court formally
and finally imposed a sentence. Parker availed himself of that opportunity and addressed
the court.12
(11) This Court has also observed that Rule 32(a) “requires, by necessary
implication, that before finally reaching a decision as to sentence, the sentencing judge
10
DEL. SUPER. CT. CRIM. R. 32(a)(1)(C). This Court has recognized that allocution’s function is
to provide an opportunity for the defendant to ask for mercy, express remorse, demonstrate his or
her humanity, and highlight mitigating circumstances. See Shelton, 744 A.2d at 492, 494.
11
Green v. United States, 365 U.S. 301, 305 (1961).
12
The record also shows that the Superior Court stated that it was “prepared to sentence, unless
there’s anything else.”
6
have an open mind at least to the extent of receiving all information bearing on the
question of mitigation.”13 “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
character of the defendant.”14
(12) On balance, Parker has not demonstrated that the violation of Rule 32(a)
here requires that he be resentenced. Nor has he demonstrated that the sentencing judge
exhibited a closed mind.15 The record reflects that the Superior Court considered facts
bearing on the nature of the offense, Parker’s character, and mitigation information. In
fact, prior to the Superior Court indicating its intent to impose the maximum sentence,
defense counsel “invoked the trial judge’s discretionary leniency[,]” 16 underscoring
information in mitigation of Parker’s sentence. As noted above, the court also permitted
Parker his right to allocution prior to imposing a final sentence.
(13) Parker’s assertion that the sentencing judge exhibited a closed mind when
he indicated that only certain statements would change his mind similarly does not merit
resentencing. In particular, Parker suggests that the sentencing judge would only
13
Osburn v. State, 224 A.2d 52, 53 (Del. 1966) (citing Green, 365 U.S. 301).
14
Weston v. State, 832 A.2d 742, 746 (Del. 2003) (citation omitted).
15
See Dabney v. State, 12 A.3d 1101, 1103 (Del. 2009) (concluding that a judge “clearly did not
sentence with a closed mind” where she permitted the defendant to express remorse, heard
arguments from both attorneys, and invited the victim to make a statement); McQuay v. State,
2004 WL 2743527, at *1 (Del. Nov. 12, 2004) (rejecting a defendant’s closed-mind argument
where the sentencing judge heard the defendant’s “expressions of remorse” and defense
counsel’s arguments, in addition to reading “letters of support” from the defendant’s brother and
neighbor).
16
Green, 365 U.S. at 302; see also Siple v. State, 701 A.2d 79, 85 (Del. 1997) (“It is within the
sentencing judge’s discretion whether to extend leniency or to withhold leniency from others
who appear less deserving.”) (internal quotation marks omitted) (citations omitted) (alterations
omitted).
7
reconsider the sentence if Parker identified the other person involved in the altercation.
Parker did not heed the court’s repeated requests to identify his accomplice, which the
sentencing judge indicated demonstrated a lack of remorse.17 Nonetheless, prior to
Parker’s allocution statement, the Superior Court stated that it was willing to reconsider
the sentence.18 The record indicates that the sentencing judge invited Parker to speak to
some of the other things that were addressed in the court’s sentencing rationale. No
limitation was placed upon what Parker could offer to the Superior Court. Based upon
the record before us, the defect in the process which occurred was addressed in a manner
that does not undermine the fairness of the sentence that was imposed.
NOW, THEREFORE, IT IS HEREBY ORDERED that the judgment of the
Superior Court be, and the same hereby is, AFFIRMED.
BY THE COURT:
/s/ Karen L. Valihura
Justice
17
Op. Br. Ex. 1 (“Defendant has no real remorse in that he will not identify his co-conspirator.”).
18
A18 (Tr. 21:17-21) (“I certainly am going to redo the sentence if he wants to tell me who the
other person is. But I’m also certainly willing to revisit it if he has any other reasons to suggest
that if the way that I’m looking at this is wrong and I’m incorrect.”); A18 (Tr. 22:9-11) (“I am
absolutely willing to hear him speak now and to reconsider what I said if he can say something
that convinces me that my thinking is misguided.”); A18 (Tr. 23:3-12) (“[I]f he can say
something that undermines what my thinking was as I announced it, I am perfectly willing to
listen to what he has to say. For example, he could tell me the name of the person who was
involved in this terrible incident. He also can speak to some of the other things that I spoke
about. And I want to emphasize that if he has something to say to me that calls into question
what I said a few moments ago, I am perfectly willing to reconsider what the sentence in his case
ought to be.”).
8