Delaware Sentencing Explained

In a Delaware criminal case, if you plead guilty or are found guilty at trial, you will be sentenced by a judge of that court. You can be immediately sentenced or your sentence can be deferred and scheduled for later date. Typically, on misdemeanors you will be immediately sentenced after a finding of guilt. On more serious felonies, sentence will usually be deferred and a pre-sentence investigation (PSI)^[1] will be ordered. A deferred sentence is usually scheduled several months out. The defense attorney and the Attorney General's Office (prosecution) can agree to immediate sentencing on certain felonies if the court permits.

At sentencing, your defense attorney will have the opportunity to argue in your defense and present any “mitigating factors” on your behalf. The attorney general will also have the opportunity to advocate for a particular sentence on behalf of the State. The victim will have the opportunity to address the Court. You, the Defendant will have the right to address the Court, if you wish.

In Delaware, every sentence is merely a recommendation to the sentencing judge. The sentencing judge has the ability to raise or lower your sentence despite the agreement of the parties. For example, if the Attorney General's Office and the defense attorney are both recommending probation and the Defendant is pleading guilty in lieu of trial, this is known as a plea agreement. Even though you have a plea agreement in place, the sentencing judge still has the ability to sentence the defendant to jail time. Many times, judges will follow the recommendation of the parties but Defendant’s should know that the judge has the final say in sentencing. An effective defense attorney will persuade the prosecutor to recommend a more lenient sentence. If the defense and prosecution disagree on the sentence the judge will make the final call.

A good criminal defense attorney will present evidence to the sentencing judge to mitigate or lessen your sentence and place you in the best light possible. Topics I may talk about in mitigating a sentence are employment history, familial relationships, parenting needs, lack of criminal history, mental health history, health history, drug and alcohol history or lack thereof, memberships, associations, organizations and good deeds to the community.

In 1989 Delaware adopted the Truth in Sentencing Act. Delaware courts hand down definite flat sentences. There is no parole in Delaware. In Delaware, there are felonies, misdemeanors and violations. Felonies and misdemeanors are divided into classes based upon the seriousness of the crime. Class A is the most serious.

You can use the Sentac Delaware Sentencing Benchbook to find out the presumptive sentence or sentencing guideline for your particular charge. In the benchbook, offenses are also classified as violent or nonviolent.

When you are sentenced in Delaware, as punishment, you will be placed on a supervision level. Delaware has levels I-V.

• Level I - Unsupervised probation: you do not have to report or meet with a probation officer. You must simply stay arrest free and comply with any special conditions of probation.
• Level II - Supervised probation: you have to show up to meet with a probation officer. The probation officer can come search your house.
• Level III - Intensive supervision: you are on more strict probation and will have to report to your probation officer more frequently.
• Level IV - House arrest, halfway house or a residential treatment center.
• Level V - Jail

The probationary period for violent felonies is 24 months. For title 16 felonies (drugs) the probationary period is 18 months. For all other offenses including misdemeanors it is one year. For sex offenses and violent felonies, the sentencing judge can make probation longer if reasons are placed on the record. If you have more than one case or charge by default your probation should run concurrently (run at the same time). Jail sentences will usually run consecutively (stacked on top of each other), however, the sentencing judge has the power to make jail run concurrently.

In Delaware, probationary sentences are usually suspended from jail time, meaning the judge will sentence you to jail time and suspend or get rid of the jail time for probation. In a typical misdemeanor case a sentence may be structured as follows:

You are hereby sentenced to "90 days in the Department of Correction at level V suspended for 1 year level I supervision. "

What does this mean? The key word is suspended. The 90 days jail sentence is suspended (or terminated) and the Defendant would do 1 year probation in lieu of jail. You might ask why suspend the jail time? If you violate your probation, the Court has the 90 days of back time to punish you. The judge could put you in jail for up to 90 days if you violate your probation.

If you are given a jail sentence you will be eligible to receive time off of your sentence if you do not commit any disciplinary violations while in the custody of the Department of Correction. For the first year of incarceration you are entitled to two days credit per month. For the subsequent years you are entitled to three days per month. If you participate in certain programs to reduce recidivism within the prison, you can receive an additional 60 days good time credit per year.

Contact Jason R. Antoine - Delaware Criminal Defense lawyer at 302-482-4802 if you are facing a harsh sentence or jail time. Your case should be reviewed by a criminal trial attorney to see if you can avoid sentencing altogether and possibly beat the case at trial. My office evaluates every case as if it were going to trial. Preparing the case for trial can also force the prosecution to offer a favorable plea recommendation. If no good legal defense is applicable, there may be ways to mitigate or minimize the damage in your case.

Contact my office at 302-482-4802 to set up a free consultation to review your case.

^[1]A pre-sentence investigation is an interview where an investigative officer ordered by the court asks you questions about your background, criminal history, drug and alcohol history, familial relationships. etc. A report will be prepared for the court. The defense and prosecution are entitled to read the report prior to sentencing.