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Rule 32 – Sentence and judgment

May 15, 2021 | Criminal Procedure, Delaware, Superior Court

(a) Sentence. –

(1) Imposition of sentence. – Sentence shall be imposed without unnecessary delay, but the court may, when there is a factor important to the sentencing determination that is not then capable of being resolved, postpone the imposition of sentence for a reasonable time until the factor is capable of being resolved. When there is a presentence investigation, the court shall provide the counsel for the defendant and the attorney general with the presentence officer’s determination, pursuant to the provisions of subdivision (c) (2) (B) , of the sentencing classifications and sentencing guideline range believed to be applicable to the case. At the sentencing hearing, the court shall afford the counsel for the defendant and the attorney general an opportunity to comment upon the presentence officer’s determination and on other matters relating to the appropriate sentence. Before imposing sentence, the court shall also –

(A) Determine that the defendant’s counsel or, when the defendant is acting pro se, the defendant have had the opportunity to read the presentence investigation report made available pursuant to subdivision (c) (3) ;
(B) Afford counsel for the defendant an opportunity to speak on behalf of the defendant, and
(C) Address the defendant personally and determine if the defendant wishes to make a statement and to present any information in mitigation of the sentence.

The attorney general shall have an equivalent opportunity to speak to the court. The victim shall have an opportunity to speak, in accordance with guidelines established by the court. Upon a motion that is jointly filed by the defendant and by the attorney general, the court may hear in camera such a statement by the defendant, counsel for the defendant, or the attorney general.

(2) Notification of right to appeal. – After imposing sentence in a case which has gone to trial on a plea of not guilty, the court shall advise a defendant who is not represented by counsel of the defendant’s right to appeal and of the right of a person who is unable to pay the cost of an appeal to apply for leave to appeal in forma pauperis. There shall be no duty on the court to advise the defendant of any right of appeal after sentence is imposed following a plea of guilty or nolo contendere.
(3) Habitual criminal; greater sentence. – The attorney general shall file a motion to declare the defendant an habitual criminal pursuant to 11 Del. C. § 4214 promptly after conviction and before sentence. Whenever it appears that a defendant may be subject to a greater sentence because of a previous conviction, the court shall proceed in accordance with 11 Del. C. § 4215.
(b) Judgment. – A judgment of conviction shall set forth the plea, the verdict or findings, and the adjudication and sentence. If the defendant is found not guilty or for any other reason is entitled to be discharged, judgment shall be entered accordingly. The judgment shall be signed by the judge and entered by the prothonotary.
(c) Presentence investigation. –

(1) When made. – A presentence officer shall make a presentence investigation and report to the court before the imposition of sentence when the court, after considering the benefit of immediate sentencing and whether there is in the record information sufficient to enable a meaningful exercise of sentencing authority, directs. Except with the written consent of the defendant, the report shall not be submitted to the court or its contents disclosed to anyone unless the defendant has pleaded guilty or nolo contendere or has been found guilty.
(2) Report. – Unless the court orders a limited investigation, the report of the presentence investigation shall contain –

(A) Information about the history and characteristics of the defendant, including prior criminal record, if any, financial condition, and any circumstances affecting the defendant’s behavior that may be helpful in imposing sentence or in the correctional treatment of the defendant;
(B) The classification of the offense and of the defendant under the categories established by the Sentencing Accountability Commission pursuant to 11 Del. C. § 6580 that the presentence officer believes to be applicable to the defendant’s case; the kinds of sentence and the sentencing range suggested for such a category of offense committed by such a category of defendant as set forth in the guidelines issued by the Sentencing Accountability Commission; and an explanation by the presentence officer of any factors that may indicate that a sentence of a different kind or of a different length from one within the applicable guideline would be more appropriate under all the circumstances;
(C) Any pertinent policy statement issued by the Sentencing Accountability Commission;
(D) A victim impact statement in accordance with 11 Del. C. § 4331(d);
(E) Such other information as may be required by statute or the court.
(3) Disclosure. At least 7 days before imposing sentence, unless this minimum period is waived, the court shall allow the defendant’s counsel or, when the defendant is acting pro se, the defendant and the attorney general to read the report of the presentence investigation, including the information required by subdivision (c) (2) but not including any final recommendation as to sentence. The court shall afford the parties an opportunity to comment on the report and, in the discretion of the court, to present information relating to any alleged factual inaccuracy contained in it. If the comments or information presented allege any factual inaccuracy in the presentence investigation report, the court shall, as to each matter controverted, make (i) a finding as to the allegation, or (ii) a determination that no such finding is necessary because the matter controverted will not be taken into account in sentencing. At the request of a party a written record of such findings and determinations shall be appended to and accompany any copy of the presentence investigation report thereafter made available to the Department of Correction.
(d) Plea withdrawal. – If a motion for withdrawal of a plea of guilty or nolo contendere is made before imposition or suspension of sentence or disposition without entry of a judgment of conviction, the court may permit withdrawal of the plea upon a showing by the defendant of any fair and just reason. At any later time, a plea may be set aside only by motion under Rule 61.
(e) Partial confinement; probation. – After conviction of an offense other than a class A felony, the court may impose a term of partial confinement or probation if permitted by law, or any other disposition authorized by 11 Del. C. § 4204.
(f) Sentences of death. –

(1) Time from sentencing date. – The date set for an execution of a defendant sentenced to death shall be in accordance with the applicable Administrative Directive promulgated by the Supreme Court of Delaware.
(2) Time of execution. – The court’s death sentencing order shall specifically provide that the execution shall take place between the hours of 12:01 a.m. and 3:00 a.m. pursuant to 11 Del. C. § 4209(f).
(3) Witnesses to execution. – The court’s death sentencing order shall specifically provide that no more than ten (10) witnesses shall witness said execution pursuant to 11 Del. C. § 4209(f).
(4) Unless otherwise ordered by the court, witnesses to an execution shall be selected pursuant to a procedure to be determined and supervised by the Commissioner of the Department of Correction and shall include, pursuant to Del. C. § 4209(f), an adult member of the victim’s immediate family as defined in 11 Del. C. § 4350(e), or his or her designee if a written request is made to the Commissioner by the Attorney General or the Attorney General’s designee at least ten (10) days prior to the scheduled date of execution.
(g) Restitution. – Restitution in accordance with law shall be determined as follows:

(1) Immediate Sentencing. –

(A) When sentence is imposed without a presentence report, restitution shall be as provided in the plea agreement.
(B) If the plea agreement does not contain a restitution agreement, restitution shall be determined upon the filing of a Restitution Claim Form with the Office of Investigative Services no later than 60 days after sentencing. Except for good cause shown, failure to file a timely claim for restitution shall be deemed a waiver of a claim for restitution. Filing may be accomplished by mailing a completed Restitution Claim Form to the Office of Investigative Services.

Upon receipt of a Restitution Claim Form, the Office of Investigative Services shall notify the defendant and the attorney for defendant of the claim. The defendant shall be notified by first class mail, at defendant’s last known address. The defendant shall have 60 days from the date of mailing to file a response by mail with the Office of Investigative Services.

Within 30 days of the receipt of a response or of the expiration of the deadline for response, the Office of Investigative Services shall send the Restitution Claim Form to the sentencing Judge together with a recommendation as to restitution. A copy of the Office of Investigative Services recommendation to the sentencing Judge shall be sent to the prosecutor and the attorney for the defendant.

The sentencing Judge in his or her discretion may order restitution based on the papers filed or may order a hearing thereon.

(2) Presentence Investigation. – When a presentence investigation is ordered, the Office of Investigative Services shall furnish the victim with a Restitution Claim Form which shall be returned to the Office of Investigative Services within 30 days of the date of mailing. Except for good cause shown, failure to timely return a Restitution Claim Form shall be deemed a waiver of restitution. The Office of Investigative Services shall recommend restitution based on the Restitution Claim Form and all information presented in the presentence report. If the defendant objects to restitution as recommended, the sentencing Judge in his or her discretion may order a hearing thereon or determine restitution without a hearing.
(3) Restitution Claim Form.

(A) The Restitution Claim Form shall provide for all forms of restitution permitted by law and shall be furnished to the Department of Justice for distribution to all victims of crime pursuant to 11 Del. C. § 9411(a) (4) and the Victims’ Compensation Assistance Program pursuant to 11 Del. C. § 9014(c).
(B) Any Restitution Claim Form filed by the Victims’ Compensation Assistance Program seeking reimbursement as restitution from a defendant shall include a supporting affidavit and documentation that sets forth all amounts paid and the basis for such payments. Proceedings on claims by the Victims’ Compensation Assistance Program shall be governed by subdivisions (g)(1) and (g)(2) of this rule and 11 Del. C. § 9014(c).

De. R. Crim. P. Super. Ct. 32

Amended November 29, 2016, effective December 15, 2016.