State v. Nicholson

• Decision Date: 04 March 1975
• Parties: STATE of Delaware v. Jesse NICHOLSON, Jr., Defendant.
• Court: Delaware Superior Court

Page 230

334 A.2d 230

STATE of Delaware v. Jesse NICHOLSON, Jr., Defendant.

Superior Court of Delaware, New Castle County.

March 4, 1975.

Jeffrey M. Weiner, Charles Brandt, Dept. of Justice, Wilmington, for the State.

Ernest S. Wilson, Jr., Esq., Wilson & Russell, Wilmington, for defendant.

OPINION

WALSH, Judge.

On March 30, 1972, the defendant who was then seventeen years of age was convicted, after a jury trial, of murder in the first degree. On April 21, 1972, Judge (now Justice) John J. McNeilly sentenced the defendant to life imprisonment. Judge McNeilly also committed the defendant:

'to the Division of Youthful Offenders for placement by that Division in whatever Department administratively they feel is best suited for his incarceration. Upon attaining the age of adult offender, the defendant shall be transferred to the Division of Adult Corrections for the purpose of carrying out the balance of this sentence'.

On May 19, 1972, Judge McNeilly modified the sentence by adding the following provision:

The phrase 'becomes of age' should be stricken and modified to read 'becomes twenty-one years of age' or until such time as this Court orders otherwise after reaching the age of eighteen in the Court's discretion.

Since the time of his sentencing, the defendant, who will become twenty-one years of age on June 15, 1975, has been incarcerated at the Delaware Youth Center, a facility operated by the Division of Juvenile Corrections, under the jurisdiction of the Department of Health and Social Services (the Department). On January 2, 1975, the Attorney General filed a motion in this Court to effect the transfer of the defendant from the Division of Juvenile Corrections to the Division of Adult Corrections on the ground that defendant is not a youthful offender as that term has been legislatively defined. The defendant, through counsel, opposes the motion to transfer custody asserting that he has been properly assigned by the Department to a facility provided by the General Assembly for offenders of his class. After the filing of counter memoranda this is the decision on the State's motion to transfer custody.

Initially, the defendant opposes the State's motion on the ground that it represents an effort to amend a final criminal judgment more than three years after it was entered. While it is open to serious question whether the State is ever foreclosed from questioning the manner in which correctional authorities discharge Court-mandated incarceration because of its continuing nature, it is unnecessary to grapple with the question of finality. Judge McNeilly, in both his original sentence and in his later modification, contemplated that a change in defendant's place of incarceration would occur after defendant reached eighteen years of age. He expressly authorized a change of status 'in the Court's discretion'. The State, of course, denies that any area of discretion exists in the manner of defendant's incarceration, asserting that the matter is one of statutory direction. It matters little in what context the issue is raised since the statutory framework upon which the State builds its argument predated Judge MeNeilly's original sentence and has been unmodified since. Simply stated the question is: May a defendant who is sentenced to a term of imprisonment which extends beyond his eighteenth birthday remain in the custody of the Division of Juvenile Corrections after attaining that age? I conclude that he may not.

In Delaware, the manner of incarceration of sentenced offenders is, for the most part, statutorily established and the General Assembly may without constitutional infringement limit the Court's post-conviction authority over both the manner and method of incarceration. State v. Flowers, Del.Sup., 330 A.2d 146 (1974). While in the first instance the Court, with few exceptions, is charged with establishing the duration of imprisonment, custody of the defendant is given to an appropriate branch of the Department of Health and Social Services subject to the limitation that 'separate custodial care and work and training facilities (be provided) for youthful offenders'. (11 Del.C. § 6526(a)). This limitation became effective in 1964 as part of the Act establishing the State Department of Corrections. The functions and responsibilities, including custody of persons in its control, of the Department of Corrections were transferred to the newly created Department of Health and Social Services upon its creation in 1969.

In State Ex rel. duPont v. Ingram, Del.Super., 294 A.2d 839 (1971) Judge O'Hara traced the brief history of a judicial attempt to require separate correctional facilities for persons over eighteen years of age. The Court, in a previous order of May 27, 1971, had construed the term 'youthful offender' as embraced in Section 6526(a) to include all offenders between the age of eighteen and twenty-one and ordered the establishment of separate custodial facilities for them. The Court noted that the term 'youthful offender' had theretofore lacked statutory definition. On June 25, 1971, in obvious reaction to the Court's attempt to remedy that lack, the Governor approved House Bill 427 (58 Del.Laws Ch. 172) which provided in part:

"Youthful Offender' means any offender requiring incarceration who has not reached his eighteenth birthday.'

The authority of the General Assembly to engraft an automatic age of classification was considered by the Supreme Court on appeal of Ingram (293 A.2d 289) as neither Ex post facto nor arbitrary. The Court...