Gibson v. State ( 2020 )

IN THE SUPREME COURT OF THE STATE OF DELAWARE
BRANDON S. GIBSON, §
§ No. 523, 2019
Defendant Below, §
Appellant, §
§ Court Below: Superior Court
v. § of the State of Delaware
§
STATE OF DELAWARE, § Cr. ID. No. 1703015543 (N)
§
Plaintiff Below, §
Appellee. §
Submitted: October 7, 2020
Decided: December 3, 2020
Before SEITZ, Chief Justice; VALIHURA and VAUGHN, Justices.
ORDER
(1) The Appellant, Brandon Gibson, appeals from a Superior Court
sentencing order. The order in question sentenced him to fifteen years at supervision
Level V, suspended after five years, followed by periods of supervision at Levels IV
and III. The offense for which he was sentenced was Possession of a Firearm by a
Person Prohibited (PFBPP). Gibson makes one claim on appeal. He contends the
sentencing judge erred by failing to comply with 11 Del. C. § 4204(n). That section
requires a judge to set forth on the record reasons for deviating from the
“presumptive sentence” adopted by the Sentencing Accountability Commission
(SENTAC).1 He contends that this error on the part of the sentencing judge entitles
him to a new sentencing. We disagree and affirm.
(2) Gibson was originally sentenced on the PFBPP charge on December 12,
2017. At that sentencing, it was thought that his prior criminal record subjected him
to a minimum of ten years at Level V.2 Consistent with that belief, the sentencing
judge sentenced him to fifteen years at Level V, suspended after ten years, followed
by periods of supervision at Level IV and Level III. It was later discovered that his
prior record subjected him to a minimum of three years at Level V, not ten.3
Accordingly, his original sentence was set aside and he was resentenced on
November 22, 2019. It is this second sentence which is now before us on appeal.
(3) A presentence report was prepared for the November 22, 2019
resentencing. In addition, two days before the sentencing, the State filed a
sentencing memorandum with the court in which it recommended that the court re-
impose an unsuspended Level V term of ten years.4 In support of its
1
The “presumptive sentence” for given offenses is listed in the Sentencing Accountability
Commission Benchbook (2017). We refer to the 2017 version of the Benchbook in this case
because Gibson was originally sentenced in 2017.
2
This was based on the belief that Gibson had two previous violent felony convictions, which
carries a ten-year minimum under 11 Del. C. 1448(e)(1)(c). Appendix to Appellant’s Opening Br.
at A8.
3
Both parties believed that one of Gibson’s prior felonies was PFBPP, a violent felony. However,
following the appointment of postconviction counsel, it was discovered that one of Gibson’s prior
felonies was Possession of Ammunition by a Person Prohibited (PABPP), a non-violent felony.
Appendix to Appellant’s Opening Br. at A9. Under 11 Del. C. § 1448(e)(1)(a), three years is the
mandatory minimum for a person convicted of PFBPP who has one prior violent felony conviction.
4
Appendix to Appellee’s Answering Br. at B24-26.
2
recommendation, the State discussed Gibson’s criminal history, which included
seven convictions of Title 11 felony offenses, one conviction of a Title 16 felony
offense, and various misdemeanor convictions. The State also cited two SENTAC
aggravating factors: undue depreciation of the offense and need for correctional
treatment. The State claimed that Gibson “is a menace to society,” and that he
“would once again be emboldened should this Court reward his ‘life of crime’ by
imposing any sentence less than the 10 years previously imposed in this case.”5
(4) At the sentencing hearing, both parties acknowledged that Gibson’s
offense carried a minimum of three years at Level V.6 The State again discussed
Gibson’s criminal history and ended by stating that somewhere between five and ten
years would be an appropriate sentence. Gibson, in response, argued that the court
should impose only the three-year minimum, contending that although he has a
series of arrests, many did not result in convictions, and there are mitigating factors
such as his troubled upbringing, having children, his acceptance of responsibility,
and having been accepted into a program for on-the-job-training with the
Department of Labor. At the conclusion of both parties’ arguments, the court
sentenced Gibson to the above-mentioned fifteen years at supervision Level V,
5
Appendix to Appellee’s Answering Br. at B26.
6
Both parties acknowledged that the mandatory minimum was for three years rather than five
because Gibson’s release date for his prior violent felony was more than ten years ago. Appellant’s
Opening Br. Tab B at 3-4. Had Gibson’s PFBPP charge in this case been within ten years of his
prior violent felony release, five years unsuspended at Level V would have been the mandatory
minimum. 11 Del C. § 1448(e)(1)(b).
3
suspended after five years, followed by periods of supervision at Levels IV and III.
The court did not explain its reasons for imposing this sentence.
(5) Gibson contends that the sentencing judge’s failure to state on the record
his reasons for imposing a sentence of five years at Level V is a violation of 11 Del.
C. §4204(n). That section reads as follows:
Whenever a court imposes a sentence inconsistent with the
presumptive sentence adopted by the Sentencing
Accountability Commission, such court shall set forth on
the record its reasons for imposing such penalty.
(6) We agree with Gibson that § 4204(n) imposes a statutory duty upon a
sentencing judge to state on the record the reasons for any sentence that falls outside
the SENTAC presumptive sentence. The presumptive sentence for Gibson’s
offense, a Class C felony,7 is up to 30 months at Level V.8 For the reasons which
follow, however, we do not believe that the sentencing judge’s failure to explain on
the record in this case why he sentenced Gibson to greater than the presumptive
sentence justifies a remand.
(7) Because the judge was required to impose a minimum sentence of three
years at Level V, he did not have the discretion to impose the presumptive sentence.
For this reason, the applicability of § 4204(n) to this case at all is unclear. We find
7
Under 11 Del. C. § 1448(c).
8
Sentencing Accountability Commission Benchbook at 47 (2017).
4
it unnecessary to address this uncertainty, however, because, as we are about to
discuss, Gibson’s sentence is explained by his prior criminal history.
(8) In addition to setting forth the presumptive sentence of up to 30 months
at Level V for a Class C felony, the SENTAC Benchbook contains a box entitled
“Sentences for Prior Criminal History Categories.”9 This box, which follows the list
of statutes included within the Class C felony offense category, provides examples
of common aggravated sentences. In this case the box provides that an aggravated
sentencing range of up to five years at Level V applies where the defendant has two
prior felonies or one prior violent felony. Because of his prior record, Gibson
qualifies for such an aggravated sentence. At the sentencing hearing, the prosecutor
was aware of this and argued that “[t]he guidelines call for up to five years for a
Class C felony with two prior felonies or one violent.”10 In its answering brief on
appeal, the State again argues that the aggravated sentence guidelines are the
guidelines applicable to Gibson. Since the sentencing judge sentenced within those
guidelines, it argues, the judge was not required to provide reasons for the sentence.
(9) We agree with the State that the guidelines for an aggravated sentence
called for a sentence of up to five years at Level V, and the sentence imposed
therefore falls within SENTAC guidelines. The fact that a sentence falls within
9
Sentencing Accountability Commission Benchbook at 48 (2017).
10
Appellant’s Opening Br. Tab B at 8.
5
SENTAC guidelines, however, is not a complete answer to a defense argument that
a sentencing judge has failed to comply with § 4204(n). The statute specifically
refers to the “presumptive sentence.” If a sentence falls outside the presumptive
sentence, it should be explained even if it falls within other applicable guidelines.
In this case, however, since the sentence imposed can be easily explained by
reference to SENTAC’s guidelines for an aggravated sentence based upon prior
criminal history, we do not think that a remand for further action by the sentencing
judge would serve any useful purpose.
(10) In Mayes v. State, the defendant argued that the sentencing judge failed
to comply with § 4204(n), (then known as § 4204(m)), by failing to state on the
record the basis for a sentence which exceeded the SENTAC presumptive
sentence.11 This court ruled that “[s]ection 4204(m) may not be reasonably
construed as a mandate or basis for reversible error since we have previously ruled
that the SENTAC guidelines provide ‘no basis for appeal.’”12 Since we are affirming
the judgment of the Superior Court in this case, we have no reason to address Mayes
v. State. We do take this occasion, however, to say that all sentencing judges should
be mindful of the statutory requirement that the judge state on the record the reasons
for any sentence which is inconsistent with the SENTAC presumptive sentence.
11
604 A.2d 839, 846 (Del. 1992).
12
Id. (citing Gaines v. State, 571 A.2d 765, 766-67 (Del. 1990)).
6
NOW, THEREFORE, IT IS HEREBY ORDERED that the judgment of the
Superior Court is AFFIRMED.
BY THE COURT:
/s/ James T. Vaughn, Jr.
Justice
7