In two separate cases, the Delaware Supreme Court this week cited double-jeopardy violations in vacating the sentences of criminal defendants who were convicted on multiple counts stemming from the same offense.
The opinions, both published Monday, came as the state is rethinking its approach to charging decisions through a top-down re-write of Delaware’s Criminal Code.
In the rulings, the high court remanded the cases for resentencing, finding that the Superior Court convictions had breached the multiplicity doctrine, which bars the state from dividing one crime into multiple counts by splitting it “into a series of temporal or spatial units.”
Addressing an issue of first impression, Chief Justice Leo E. Strine Jr. wrote in a 4-1 decision that Justin Parker could not be charged with both theft of a motor vehicle and felony theft for his role in a 2017 heist in which Parker and another man stole three all-terrain vehicles, a dirt bike and a Kawasaki motorcycle from the lot of a shipping company in New Castle.
For the purposes of double jeopardy, Strine wrote, theft of a motor vehicle “is indeed the same offense” as felony theft, and the two charges cannot be separated.
Attorneys from the Delaware Department of Justice had argued on appeal that that the two offenses differed under Delaware’s Criminal Code, and double-jeopardy considerations did not apply because the two charges related to separate items taken during the incident.
Strine, however, said the state’s position meant that defendants could be sentenced twice for committing the same crime and that the General Assembly had never intended to craft a law that would impose more than one punishment for a single underlying criminal act.
In his opinion, Strine wrote that Delaware’s three-factor balancing test weighs the time, location and intended purpose of the crime to determine whether multiple violations of the same offense have occurred. However, he noted that the thefts in Parker’s case had all occurred in no more than a 90-minute span, on the same lot, as part of one scheme to steal the vehicles.
“There is no evidence to suggest that Parker’s theft of the motorcycle was part of a different criminal plan from his theft of the other items or that the thefts occurred at different times or locations,” Strine said in a 21-page majority opinion. “In short, it was all one heist.”
In the other case, an attorney from the Office of the Public Defender argued that their client, Rydell Mills, was unconstitutionally convicted on two counts of resisting the arrest with force or violence of two Wilmington police officers who had found him with drugs and a digital scale in August 2017.
Prosecutors in that case had charged Mills with resisting the arrest of each officer on the scene, as well as other charges for dealing heroin and cocaine.
Bernard J. O’Donnell, supervisor of the public defenders’ appellate unit, argued that Mills could only be sentenced once under the multiplicity doctrine because the charge stemmed from a single, joint arrest by the officers.
DOJ attorneys, however, argued that multiple charges were warranted because the statute for resisting arrest was intended to individual protect officers from harm.
Strine acknowledged that Delaware law was not clear as to whether lawmakers intended to provide for a separate punishment for each officer whom a defendant resists during the course of an arrest. However, he again criticized the state’s position for leading to “inequitable results.”
In Delaware, he said, a misdemeanor violation for resisting arrest carries a sentence of up to one year in prison, while a felony could result in a sentence of two years.
“According to the state’s theory of the statute, then, a defendant who runs away from ten officers trying to arrest her, or physically resists five officers trying to arrest her, could be punished with up to ten years in prison. In many cases, the punishment for resisting arrest could eclipse the punishment for the underlying crime,” he said.
“For these reasons, we hold that the unit of prosecution for resisting arrest with force or violence is the arrest, not the officer, and charging separate counts based solely on the number of arresting officers violates the multiplicity doctrine.”
Strine, who in recent years has called for an overhaul to Delaware’s criminal laws, is working with lawmakers and attorneys to streamline the Criminal Code and reduce prosecutors’ ability to “stack” multiple charges for the same crime, among other things.
Legislation has not yet been introduced in Dover, but conversations are ongoing and Attorney General Kathy Jennings has been engaging in the effort.
On Tuesday, a spokesman for the Delaware DOJ said the department “respects the well-reasoned opinion of the court” and that Jennings, who took office earlier this month, “had previously begun consideration of policies regarding applying multiple charges in crimes.”
An attorney from the public defenders office did not return a call Wednesday seeking comment on Strine’s rulings.
The cases, on appeal, were captioned Parker v. State and Mills v. State.