IN THE SUPERIOR COURT OF THE STATE OF DELAWARE
STATE OF DELAWARE
I.D. # 0703031898
V.
JOHN E. FOSTER,
\/\/\./\/\/\_/\/
Defendant.
Submitted: June 14, 2018
Decided: September 26, 2018
ORDER DENYING DEFENDANT’S REQUEST FOR A CERTIFICATE OF
ELIGIBILITY TO FILE UNDER
11 Del. C. 8 4214(1`) AND Del. Super. Ct. Spec. R. 2017-1(d)
This 26th day of September, 2018, upon consideration of the Request for a
Certiflcate of Eligibility filed on behalf of John E. Foster (the “Request”), the
Attorney General’s response thereto, and the record in this matter, it appears to the
Court that:
1. On September 19, 2008, following a two-day trial, a Superior Court
jury convicted Foster of Burglary Second Degree and Robbery Second Degree.
Before sentencing, the Court granted the State’s petition to declare Foster a
habitual offender With respect to both charges.1 Under the then-extant Habitual
Criminal Act, Foster faced a minimum sentence of eight years for the Burglary
Second Degree conviction and five years for the Robbery Second Degree
l D.I. 42. 11 Del. C. § 4214(a) (Supp. 1996) (providing that a person previously convicted of at
least three separate, successive felonies, Who thereafter is convicted of a fourth felony, could be
declared a habitual criminal).
conviction. For each of those charges, Foster could be sentenced to a term of
natural life imprisonment2 Under a corrected sentencing order dated May 6, 2009,
the Court sentenced Foster as follows: (1) as to Burglary Second Degree, effective
August 28, 2007, 10 years at Level V with credit for 138 days served; and (2) as to
Robbery Second Degree, seven years at Level V.3 In other words, under the then-
extant Habitual Criminal Act, Foster was required to receive a minimum sentence
of 13 years for the Burglary Second and Robbery Second charges; at sentencing,
he received a sentence of 17 years for those charges.
2. Foster requests a certificate of eligibility to file a petition seeking
exercise of the Court’s jurisdiction to modify his sentence under 11 Del. C. §
4214(f).4 Section 4214(f) permits a defendant sentenced as a habitual criminal
before July 19, 2016 “to a minimum sentence of not less than the statutory
maximum penalty for a violent felony pursuant to subsection (a) of this section” to
petition the Superior Court for sentence modification after the defendant has
“served a sentence of incarceration equal to any applicable mandatory sentence
otherwise required by this section or the statutes describing said offense . . . .”5
2 11 Del. C. §4214(&) (supp. 1996).
3 Sr'afe v. John E. Fo.s'!er, ID No. 0703031898 & 0708026681 (Del. Super. May 6, 2009)
(CORRECTED SENTENCING ORDER). The Court simultaneously sentenced Foster for a
Burglary Third Degree conviction, imposing 18 months at Level V, suspended for 18 months at
Level III.
4 D.i. 245; Dei. super. Ct. spec. R. 2017-i(c)(2), (3).
5 ii De:. c..‘. §4214(:).
3. The State responded,6 opposing Foster’s Request on the basis that he
is not eligible for review under Section 4214(f)7 The State argues Foster does not
meet the first prong of Section 4214(f) because his original Sentence exceeded the
minimum mandatory sentence that applied at the time of sentencing, The State
argues:
[Foster’s] sentence on each conviction exceeded the minimum
mandatory period of incarceration The application of prior 11 Del. C.
§4214(a) did not eliminate any discretion afforded to the Court and
therefore [Foster] is not subject to a sentence review pursuant to 11
Del. C. § 4214(f). The legislative intent of Senate Bill 163, as
evidenced by House Bill 18, was not to allow for a sentence review of
discretionary sentences imposed pursuant to 11 Del. C. § 4214(a).8
Foster did not respond to or contest the State’s interpretation of his sentence or
Section 4214(f).
4. The State’s response refers to the legislative intent of Senate Bill 163
and House Bill 18,9 which collectively amended 11 Del. C. § 4214, the habitual
criminal statute. In 2016, the General Assembly enacted Senate Bill 163, which
entirely rewrote the version of the habitual criminal statute under which Foster was
sentenced.10 Senate Bill 163 changed some of the circumstances under which a
person could be declared a habitual offender and some of the mandatory sentences
6 See Del. Super. Ct. Spec. R. 2017-1(c)(5) (providing that the Attorney General shall file a
written response to a request for certificate of eligibility).
7 D.i. 246.
8 1a at 3.
9 31 Del. Laws ch. 6, §§ i-3 (2017).
m 80 D@i. Laws ch. 321, § i (2016).
associated with a habitual offender designation As indicated above, Section
4214(f) gave some offenders sentenced under the old version of the law an
opportunity to petition the Court to reconsider their sentences In April 2017,
before Foster filed his Request, the General Assembly further amended Section
4214(f) by adopting House Bill 18. House Bill 18 clarified that the right to petition
the Court for reconsideration was limited to a person sentenced under the old
version of the law to “a minimum sentence of not less than the statutory maximum
penalty for a violent felony pursuant to 4214(a) of this title . . . .” The synopsis to
House Bill 18 explained that the amendment to Section 4214(f) was intended to
clarify “the legislature’s intent to focus upon the minimum mandatory sentences
imposed by the habitual offender statute, as opposed to those sentences where
sentencing judges have complete discretion with respect to sentencing.”ll
5. The State’s argument that Foster is not eligible for Sentence review is
consistent with recent Delaware Supreme Court decisions. On April 24, 2018, the
Delaware Supreme Court issued its decision in Clark v. State, addressing a
defendant’s eligibility for sentence review under Section 4214(1).12 In Clark, the
sentencing judge exercised his discretion and exceeded the minimum sentence
under Section 4214(a) of the old version of the habitual criminal statute.13 The
" si Dei. Laws, ch. 6, §§ 1-3 (2016).
11 2018 wL 1956298 (Dei. Apr. 24, 2018).
13 Id. ar *3.
minimum sentence the judge could have imposed for the felony for which Clark
was declared habitual was five years; the sentencing judge, however, imposed a
fifteen-year period of incarceration14 The Delaware Supreme Court held
“[b]ecause the sentencing judge exercised his discretion under § 4214(a) to
sentence Clark to fifteen years of Level V incarceration instead of five years of
Level V incarceration, Clark did not receive a ‘minimum sentence of not less than
the statutory maximum penalty for a violent felony.”’15
The Supreme Court
therefore held Clark was not eligible for relief under Section 4214(f)16 Shortly
thereafter, in Durham v. State, the Supreme Court reiterated that ruling, holding
that Durham, who was facing a minimum sentence of 20 years under Section
4214(a), but received a sentence of life imprisonment, was not eligible for sentence
review under Section 4214(f)17
6. Clark and Durham control resolution of Foster’s Request. At the time
she sentenced Foster, the sentencing judge could not impose a sentence of less than
eight years for the Burglary Second charge and five years for the Robbery Second
charge. The sentencing judge exceeded the minimum sentence for both charges,
exercised her discretion, and imposed a sentence of ten years for Burglary Second
and seven years for Robbery Second. As in Clark and Durham, because the
14 Id. at *3.
15 Id.
16 ld.
11 2018 WL 2069057, at *i (Dei. May 2, 2018).
5
sentencing judge exercised discretion under the then-extant version of Section
4214(a) to exceed the minimum sentence, Foster did not receive “a minimum
sentence of not less than the statutory maximum penalty for the violent felony.”
Accordingly, Foster is not eligible for sentence review under Section 4214(f)
FOR THE FOREGOING REASONS, IT IS ORDERED that John E.
Foster’s Request for Certification of Eligibility is DENIED.
Abigai . , Judge
Original to Prothonotary
cc: Anthony A. Figliola, Jr., Esquire
Joseph S. Grubb, Deputy Attorney General