Howell v. State

• Decision Date: 17 September 1980
• Citation: 421 A.2d 892
• Parties: Wendell HOWELL, Defendant, Appellant, v. STATE of Delaware, Plaintiff, Appellee.
• Court: Supreme Court of Delaware

Page 892

421 A.2d 892

Wendell HOWELL, Defendant, Appellant, v. STATE of Delaware, Plaintiff, Appellee.

Supreme Court of Delaware.

Submitted May 13, 1980.

Decided Sept. 17, 1980.

Bertram S. Halberstadt (argued), of Biggs & Battaglia, Wilmington, for defendant, appellant.

Charles M. Oberly, III, Asst. State Prosecutor (argued), Wilmington, for plaintiff, appellee.

Ernest S. Wilson, Jr., and John Trager, amicus curiae, of Wilson & Whittington, P.A., Wilmington, for American Civil Liberties Union-Delaware.

Before HERRMANN, C. J., DUFFY and HORSEY, JJ.

HORSEY, Justice:

In this criminal appeal the defendant, Wendell Howell, seeks to set aside the judgment and sentences of the Superior Court based on his entry of "Robinson" pleas of guilt ¹ to two courts of official misconduct in violation of 11 Del.C. § 1211(2). ² The judgment and sentences arose from defendant's unreasonable delay in reimbursing the Wilmington School District for materials furnished and labor performed on defendant's home by School Board employees during their paid working hours and while defendant was serving as President of the Board of Education of Wilmington.

Defendant raises three objections to the proceedings below and on appeal. First, defendant contends that the amended counts of the indictment to which he pled guilty should be dismissed because they fail to charge an offense under 11 Del.C. § 1211(2). Second, defendant contends that the Trial Court abused its discretion in sentencing defendant to a term of incarceration for each of the official misconduct counts to which he pled guilty. And third, defendant contends that the refusal of a Justice of this Court, not a member of the panel sitting in this case, to permit defendant to see the sentencing recommendation section of the Pre-Sentence Report was an abuse of discretion adversely affecting defendant's appellate rights. The American Civil Liberties Union-Delaware, which was granted leave to file an amicus curiae brief, argues that the sentences should be vacated on constitutional grounds. We take up these defenses seriatim.

I

Howell was originally indicted on five misdemeanor counts of official misconduct in violation of 11 Del.C., § 1211(2); five counts of theft, three felony and two misdemeanor counts, in violation of 11 Del.C. § 841; ³ one count of conspiracy second degree, a felony, in violation of 11 Del.C. § 512; ⁴ and two counts of criminal solicitation, both felonies, in violation of 11 Del.C. § 502. ⁵ All the charges concerned work and materials furnished Howell's personal residence while Howell served as President of the Board of Public Education of Wilmington and for which he did not, until nearly two years later, reimburse the School Board.

After the Trial Court had denied defendant's pretrial motion to dismiss the official misconduct counts of the original indictment for failure to allege facts constituting offenses, the parties entered into a plea agreement. Under its terms defendant entered pleas of guilty to two of the amended official misconduct counts, and the State then nolle prossed the remaining 11 counts. The amended counts differed from the original counts only in alleging that Howell had failed "in a timely fashion" to reimburse the School Board for the materials and labor provided Howell at the Board's expense-to reflect Howell's repayment.

Before accepting defendant's pleas, the Trial Court asked counsel whether the amended indictment stated offenses of official misconduct:

THE COURT: Mr. Halberstadt, are you satisfied that your client is pleading guilty to the offense of Official Misconduct, Official Misconduct with the amendment as proposed by the State?

MR. HALBERSTADT: Your Honor, the answer to that question is yes. This Robinson plea would be in the nature of that, without an admission of guilt, but that the statute which speaks in terms of failure to meet a duty that is inherent in the position. The amended indictment provides that that inherent duty would include the duty of reimbursing the Board in a timely fashion. We believe that would be encompassed within the thrust of the Statute.

THE COURT: Is it sufficient, merely that one uses public funds without authority?

MR. OBERLY: The State believes it does where it is done knowingly. That language is not changed.

THE COURT: Do you agree, Mr. Halberstadt?

MR. HALBERSTADT: Yes. The language as presently stated still alleges the necessary intent which is fundamental to that Statute, the intent to obtain a personal benefit, knowingly refraining from performing the duty. The amendment goes to the timeliness of the performance of that duty, as far as the State is concerned. We believe the purpose of the Robinson plea is that the duty would be found to exist in an unstated fashion, as it is stated here, or in an untimely fashion, when the duty is not performed within a timely period.

So, really, what has been done here is the gist of the indictment has been changed to be more specific, to simply reflect the fact that Mr. Howell did eventually pay all monies that were to be found to be due.

The State contends that defendant, having pled guilty to an amended indictment that defendant conceded before the Trial Court to state offenses under 11 Del.C. § 1211(2), should now, in effect, be estopped from arguing on appeal that the amended indictment did not state offenses under § 1211(2). ⁶ See United States v. Broncheau, 9th Cir., 597 F.2d 1260 (1979), cert. den., 444 U.S. 859, 100 S.Ct. 123, 62 L.Ed.2d 80 (1979), Coleman v. Burnett, D.C.Cir., 477 F.2d 1187 (1973); Beasley v. State, Md.App., 299 A.2d 482 (1973). Defendant, on the other hand, contends that failure to charge an offense amounts to a jurisdictional defect which may not be waived. Brisson v. Warden of Connecticut State Prison, Conn.Super., 25 Conn.Super. 202, 200 A.2d 250 (1964); Baker v. State, Md.App., 6 Md.App. 148, 250 A.2d 677 (1969).

We find defendant's jurisdictional argument to be controlled by Fountain v. State, Del.Supr., 288 A.2d 277 (1972). There we held that "the failure of an indictment or information to allege an essential element of the offense charged is not considered a jurisdictional defect." 288 A.2d at 279. However, we shall proceed to decide the question presented on its merits.

11 Del.C. § 1211(1) and (2) provide, in pertinent part, as follows:

"A public servant is guilty of official misconduct when, intending to obtain a personal benefit or to cause harm to another person:

(1) He commits an act constituting an unauthorized exercise of his official functions, knowing that the act is unauthorized; or

(2) He knowingly refrains from performing a duty which is imposed upon him by law or is clearly inherent in the nature of his office...."

The pertinent portions of the amended counts of the indictment to which Howell pleaded guilty charged that Howell

"... in the capacity of a public servant as President of the Board of Public Education in Wilmington, and intending to obtain a personal benefit, knowingly refrained from performing a duty which was clearly inherent in the nature of his office, in that he knowingly refrained from reimbursing in a timely fashion the Board for materials and labor provided at the Board's expense (for Howell's personal residence)."

The gist of Howell's argument is that § 1211 is confined to criminal conduct of public servants in their performance of official functions or duties. Defendant states that any knowing breach of duty of a public servant which occurs outside his officially prescribed duties is not a duty "clearly inherent in the nature of his office"-within the ambit of § 1211(2). Hence, defendant says that while his failure to "quickly reimburse the Board may have been an ethical violation at most, ... it cannot be fairly said to be 'official misconduct'-a breach of a specific official duty of the office of President." We disagree because we find § 1211(2) to be sufficiently broad to encompass the offenses to which defendant entered guilty pleas.

As the Court below noted, § 1211 deals with a wide spectrum of official misconduct by a public servant. Subsection (1) of § 1211 is concerned with acts "constituting an unauthorized exercise of (a public servant's) official functions." Subsection (3) of § 1211 is concerned with performance of "official functions" in such a manner as to "benefit (a public servant's) own property or financial interests"; and subsection (4) of § 1211 concerns the performance of "official functions in a way intended to practice discrimination." ⁷ In contrast, subsection (2) of § 1211 is not confined to the performance of "official functions" but is concerned with the failure to perform a duty either imposed by law or "clearly inherent in the nature of (a public servant's) office."

The Commentary on § 1211, which was enacted in 1973 as part of the Delaware Criminal Code, discusses the underlying purpose § 1211. It was to embrace within the new crime of "official misconduct" all former acts of misconduct in public office which had previously been separately treated under the classifications of malfeasance, misfeasance and nonfeasance in office. Commentary, Delaware Criminal Code (1973), 11 Del.C. § 1211.

Under prior law, nonfeasance by a public officer was defined as the "willful failure or neglect to perform a duty imposed upon him by law." State v. Matushefske, Del.Super., 215 A.2d 443, 447 (1965). The Commentary describes subsection (2) of § 1211 as covering "a case of knowing nonfeasance, when a duty is clearly imposed upon the accused by law or is inherent in the nature of his office." (underlying added) The Commentary adds that "(s)imple nonfeasance, unaccompanied with any intent to gain a benefit ... would not constitute official misconduct." Thus, the words, "intending to obtain a personal benefit", found in the introductory clause of § 1211, are an essential element of the offense of official misconduct.

The Commentary to § 1211 does not...