State v. Ismaaeel

• Decision Date: 13 January 2004
• Parties: STATE of Delaware v. Mahir ISMAAEEL.
• Court: Delaware Superior Court

840 A.2d 644

STATE of Delaware v. Mahir ISMAAEEL.

Superior Court of Delaware, Sussex County.

Submitted: December 23, 2003.

Decided: January 13, 2004.

Adam D. Gelof, Deputy Attorney General, Department of Justice, Georgetown, for the State.

Carole C. Dunn, Georgetown, for Defendant.

OPINION

STOKES, J.

BACKGROUND

Mahir Ismaaeel (hereafter "Defendant") was charged with five drug offenses by information dated May 14, 2003. The State of Delaware (hereafter "State") alleged that: Defendant committed the offense of Trafficking in Cocaine involving, in part, his possession of at least 5 grams but less than 50 grams of cocaine on April 3, 2003 in Count 1; Defendant committed the offense of Possession With Intent to Deliver Cocaine in Count 2; Defendant committed the offense of Maintaining a Dwelling for Keeping Controlled Substances in Count 3; Defendant committed the offense of Conspiracy in part by agreeing with another to engage in conduct constituting the felony of Trafficking in Cocaine in Count 4; and Defendant committed the offense of Possession of Drug Paraphernalia alleged to be a bag to store or contain controlled substances in Count 5.

The Defendant pled not guilty to these charges on June 17, 2003. On August 27, 2003, Defendant waived his right to a jury trial. Following a bench trial, Defendant was convicted of all the charges except for Count 3, Maintaining a Dwelling.

At trial, the defense moved to dismiss the trafficking and conspiracy counts. The argument concerned the effect of House Bill Number 210 (hereafter "H.B. No. 210") (amended by Senate Amendment No. 3 and codified at 74 Del. Laws c. 106 (2003)). It was approved on June 30, 2003, and changed the first level weight criteria from 5 to 10 grams. The defense argued that this change repealed prior law and decriminalized, forgave, and eliminated all trafficking prosecutions involving weights of cocaine less than 10 grams before and after June 30, 2003.¹

In this view, the motion claimed:

8. Defendant contends that, as those alleged to be in possession of a cocaine weight under ten grams, the June 30th enactment is not a mere amendment of the statutory subsection, but rather, a substantive and qualitative change in law which extinguishes the legal basis for prosecuting Defendant for trafficking in this case, and further, provides no penalty or sentence, for one not in possession of the minimum requisite weight.

While recognizing the general savings statute in 11 Del. C. § 211,² Defendant asserted the repeal provisions of Subsection (a) would not apply to him as he had not been sentenced. Concerning the amendment terms of Subsection (b), Defendant's position was that this provision "addresses the situation of continued applicability of a prior version of a statute to cases in progress if a statute is later amended." (Def.'s Mot. ¶ 7 (Defendant's emphasis)). Since a repeal was alleged, the amendment section was immaterial.

The motion to dismiss the trafficking and conspiracy counts was denied. However, time was given for additional consideration for, if there was a repeal, the two charges could not stand. The State answered the defense motion on September 24, 2003. Thereafter, the defense replied on November 13, 2003, one day before sentencing on November 14th.

The reply changed the defense's position; the claim that H.B. No. 210 repealed existing law and decriminalized trafficking in cocaine was abandoned. Defendant's new approach was: "defendant does not disagree that trafficking of illegal substances remains a punishable crime in Delaware notwithstanding the June 30, 2003 enactment; and, thus, the trafficking statute has not been repealed. However, it should be noted that defendant, in this case, was also found guilty of the same conduct on April 3, 2003 of Possession With Intent to Deliver Cocaine, a lesser-included offense, for which defendant is exposed, under both statutes, to significant Level 5 incarceration." Defendant further argued that the general savings statute would not apply to an amended law like H.B. No. 210 and that the lesser penalties of H.B. No. 210 should be effective.

Given these circumstances, the sentencing was postponed until December 23, 2003, and the State filed another response. At sentencing, Defendant reconfirmed that the trafficking statute had not been repealed. Further, Defendant conceded that Possession With Intent to Deliver Cocaine was not a lesser-included offense of Trafficking in Cocaine under well-settled principles of Delaware law. See McNair v. State, 825 A.2d 239 (Table), 2003 WL 21241355, at *1 (Del.); State v. Skyers, 560 A.2d 1052, 1054 (Del.1989). The Defendant's arguments were rejected, the trafficking and conspiracy convictions were not vacated, and he was sentenced under the law in effect on April 3, 2003. On the trafficking charge, Defendant received a three-year mandatory minimum period of imprisonment. Given a prior conviction for Possession With Intent to Deliver Cocaine, the sentence on the same offense in Count 2 was a 15-year required jail term. Defendant contends his sentence should be mandatory terms of two years for trafficking and 3 years as a second offender for Possession With Intent to Deliver Cocaine under H.B. No. 210 rather than 3 and 15 year terms imposed under prior law.

ISSUES

1. Did the general savings statute under 11 Del. C. § 211 preserve rules of law which were later amended?

2. Did the Delaware General Assembly direct that the provisions of H.B. 210 providing different drug weights and penalties by amendment be retroactive to reach criminal conduct before the date of its enactment?

DISCUSSION

Trafficking in Cocaine is a Class B felony defined in 16 Del. C. § 4753A(2)(a). On April 3, 2003, defendant possessed 7.5 grams of cocaine. At that time, he was responsible for having this quantity and subject to a 3 year minimum mandatory sentence. On June 30, 2003, H.B. No. 210 was approved. The Bill is captioned "AN ACT TO AMEND TITLES 10, 11, 16 AND 21 OF THE DELAWARE CODE RELATING TO CERTAIN CRIMES."

Concerning the Trafficking in Cocaine offense, and the penalties for it, and a second offense for Possession With Intent to Deliver Cocaine, it provided:

Section 13. Amend Subparagraphs ... (a)(2)a., ... of § 4753A of Title 16 of the Delaware Code by striking the phrase "3 years" as it appears variously therein, and by substituting in lieu thereof the phrase "2 years."

Section 16. Amend § 4753A(a)(2) of Title 16 of the Delaware Code by striking the phrase "5 grams" as it appears therein, and by substituting in lieu thereof the phrase "10 grams."

Section 17. Amend § 4753A(a)(2)a. of Title 16 of the Delaware Code by striking the phrase "5 grams" as it appears therein, and by substituting in lieu thereof the phrase "10 grams."

Section 22. Amend § 4763(a)(2) of Title 16 of the Delaware Code by striking subparagraphs a. and b. of said paragraph in their entirety, and by substituting in lieu thereof the following:

"a. § 4751 (excepting heroin or any mixture containing heroin) or § 4752, 3 years.

b. § 4751 (heroin or any mixture containing heroin), 5 years."

Section 23. Amend § 4763(a)(3) of the Delaware Code by striking said paragraph in its entirety.

Reviewing the amendment, a specific savings clause is not provided. Nothing is said whether H.B. No. 210 reaches backward or forward in time or what effect it would have on pending prosecutions or uncharged offenses for acts before June 30th. Obviously, if Defendant possessed 7.5 grams of cocaine after June 30, 2003, he could not be convicted and sentenced for trafficking. Moreover, only individuals possessing 10 or more grams of cocaine are exposed to a 2 year mandatory minimum term. Trafficking in Cocaine continued as a Class B felony except Section 9 of H.B. No. 210 increased the maximum sentence from 20 to 25 years. The Defendant cannot receive this greater punishment under ex post facto principles of law of the U.S. Constitution as applied to the states through the Due Process Clause of the Fourteenth Amendment. See DiStefano v. Watson, 566 A.2d 1, 5 (Del.1989)

("A law violates the ex post facto provision, when it changes the punishment, and inflicts a greater punishment, than the law annexed to the crime, when committed." (citations omitted)).

Given this background, the general savings statute must be considered, as H.B. No. 210 provides for punishment and is a penal statute. Subsection (b) states:

"(b) Any action, case, prosecution, trial or other legal proceeding in progress under or pursuant to any statute relating to any criminal offense set forth under the laws of the State shall be preserved and shall not become illegal or terminated in the event that such statute is later amended by the General Assembly, irrespective of the stage of such proceedings, unless the amending act expressly provides to the contrary. For the purposes of such proceedings, the prior law shall remain in full force and effect."

11 Del. C. § 211(b) (emphasis added).

This law was approved on April 20, 1998 and, according to its synopsis, is modeled in part upon federal law.³

Where legislation is structured on other laws, the Delaware courts look to them for insight. In Garden v. State, 815 A.2d 327, 342-3 (Del.2003), Florida's death penalty jurisprudence was germane because there was a legislative linkage between the laws of Delaware and Florida. The Court wrote that: "Delaware's death penalty statute, as redrafted in 1991, was written to emulate Florida's law, which was upheld by the Supreme Court in Proffitt [v. State of Florida, 428 U.S. 242, 96 S.Ct. 2960, 49 L.Ed.2d 913]." Id. at 342. See also 68 Del. Laws c. 181 (1991), Synopsis (stating "this bill generally follows the Florida statute as approved by the United States Supreme Court" (citations omitted)).

Similarly, after consideration of recognized authority, a Delaware long-arm statute, 10 Del. C. § 3104, was determined to be a "single act" and not a "consent" statute. As...