Classification of Offenses; Sentences

Del. Code tit. 11, ch. 42
in effect

Del. Code tit. 11, § 4201 Transition provisions.

(a) Felonies are classified, for the purpose of sentence, into 7 categories: (1) Class A felonies; (2) Class B felonies; (3) Class C felonies; (4) Class D felonies; (5) Class E felonies; (6) Class F felonies; (7) Class G felonies. (b) Any crime or offense which is designated as a felony but which is not specifically given a class shall be a class G felony and shall carry the sentence provided for said class felony. (c) (1) The following felonies shall be designated as violent felonies: Title 11, Section Crime 513 Conspiracy First Degree 602 Aggravated Menacing 604 Reckless Endangering First Degree 605 Abuse of a Pregnant Female in the Second Degree 606 Abuse of a Pregnant Female in the First Degree 607 Strangulation 612 Assault in the Second Degree 613 Assault in the First Degree 614 Assault on a Sports Official [Former] 615 Assault by Abuse 617 Criminal Youth Gangs 629 Vehicular Assault in the First Degree 630 Vehicular Homicide in the Second Degree 630A Vehicular Homicide in the First Degree 631 Criminally Negligent Homicide 632 Manslaughter 633 Murder by Abuse or Neglect in the Second Degree 634 Murder by Abuse or Neglect in the First Degree 635 Murder in the Second Degree 636 Murder in the First Degree 645 Promoting Suicide 768 Unlawful Sexual Contact in the Second Degree 769 Unlawful Sexual Contact in the First Degree Former 770 Unlawful Sexual Penetration in the Third Degree or Rape in the Fourth Degree Former 771 Unlawful Sexual Penetration in the Second Degree or Rape in the Third Degree Former 772 Unlawful Sexual Penetration in the First Degree or Rape in the Second Degree Former 773 Unlawful Sexual Intercourse in the Third Degree or Rape in the First Degree 774 Sexual Extortion 775 Bestiality 776 Continuous Sexual Abuse of Child 777 Dangerous Crime Against a Child 777A Sex Offender Unlawful Sexual Conduct Against a Child 778 Sexual Abuse of a Child by a Person in a Position of Trust, Authority or Supervision in the First Degree 778A Sexual Abuse of a Child by a Person in a Position of Trust, Authority or Supervision in the Second Degree 782 Unlawful Imprisonment in the First Degree 783 Kidnapping in the Second Degree 783A Kidnapping in the First Degree 787 Trafficking of an Individual, Forced Labor and Sexual Servitude 802 Arson in the Second Degree 803 Arson in the First Degree 825 Burglary in the Second Degree 826 Burglary in the First Degree [Former] 826A Home Invasion 831 Robbery in the Second Degree 832 Robbery in the First Degree [Former] 835 Carjacking in the Second Degree [Former] 836 Carjacking in the First Degree 846 Extortion 1103B Child Abuse in the Second Degree 1103C Child Abuse in the First Degree 1108 Sexual Exploitation of a Child 1109 Unlawfully Dealing in Child Sexual Abuse Material 1112A Sexual Solicitation of a Child 1112B Promoting Sexual Solicitation of a Child 1250 Assault in the First Degree Against a Law-Enforcement Animal 1253 Escape After Conviction, if convicted as a Class C Felony or a Class B Felony 1254 Assault in a Detention Facility 1256 Promoting Prison Contraband (Deadly Weapon) 1257(a) Resisting Arrest with Force or Violence 1302 Riot 1304 Hate Crimes 1312 Stalking 1338 Bombs, Incendiary Devices, Molotov Cocktails and Explosive Devices 1339 Adulteration (Causing Injury or Death) 1353 Promoting Prostitution in the First Degree 1442 Carrying a Concealed Deadly Weapon (Firearm Offense) 1444 Possessing a Destructive Weapon 1445 Unlawfully Dealing With a Dangerous Weapon 1447 Possessing a Deadly Weapon During the Commission of a Felony 1447A Possessing a Firearm during the Commission of a Felony 1448(e) Possession of a Deadly Weapon by Persons Prohibited (Firearm or Destructive Weapon Purchased, Owned, Possessed or Controlled by a Violent Felon). 1449 Wearing Body Armor During the Commission of a Felony 1455 Engaging in a Firearms Transaction on Behalf of Another (Subsequent Offense) 1503 Racketeering 3533 Aggravated Act of Intimidation Title 16, Section Crime 1136 Abuse/Mistreatment/Neglect of a Patient [Former] 4751 Manufacture/Delivery/Possession With Intent to Deliver a Controlled or Counterfeit Controlled Substance, Manufacture or Delivery Causing Death [Former] 4752 Manufacture/Delivery/Possession With Intent to Deliver a Controlled or Counterfeit Controlled Substance [Former] 4752A Unlawful Delivery of a Noncontrolled Substance [Former] 4753A Trafficking in Marijuana, Cocaine, Illegal Drugs, Methamphetamine, LSD, Designer Drugs or MDMA [Former] 4752 Drug Dealing — Aggravated Possession; Class B Felony [Former] 4753 Drug Dealing — Aggravated Possession; Class C Felony [Former] 4754(1) Drug Dealing — Aggravated Possession; Class D Felony [Former] 4761 Former Distribution to Minors 4761(c) and (d) Illegal Delivery of Prescription Drugs [Former] 4773 Delivery of Drug Paraphernalia to a Minor Title 31, Section Crime 3913 Abuse/Neglect/Exploit/Mistreat an Adult who is Impaired (2) Any attempt to commit any felony designated in paragraph (c)(1) of this section as a violent felony shall also be designated as a violent felony.

Del. Code tit. 11, § 4202 Classification of misdemeanors.

(a) Misdemeanors are classified for the purpose of sentence into 2 categories: (1) Class A misdemeanors; (2) Class B misdemeanors. (b) Any offense defined by statute which is not specifically designated a felony, a class A misdemeanor, a class B misdemeanor or a violation shall be an unclassified misdemeanor or an environmental misdemeanor or environmental violation.

Del. Code tit. 11, § 4203 Violations.

There shall be a class of offenses denominated violations. No offense is a violation unless expressly declared to be a violation in this Criminal Code or in the statute defining the offense.

Del. Code tit. 11, § 4204 Authorized disposition of convicted offenders.

(a) Every person convicted of an offense shall be sentenced in accordance with this Criminal Code, with the exception of an environmental misdemeanor as defined in § 1304 of Title 7. This section applies to all judgments of conviction, whether entered after a trial or upon a plea of guilty or nolo contendere. (b) A person convicted of a class A felony may be sentenced to life imprisonment in accordance with § 4205 of this title, unless the conviction is for first-degree murder, in which event § 4209 of this title shall apply. Notwithstanding any other statute, a sentence under § 4209 of this title may not be suspended or reduced by the court. (c) When a person is convicted of any offense other than a class A felony the court may take the following action: (1) Impose a sentence involving an Accountability Level I sanction. — Such sanctions include imposition of a fine as provided by law for the offense or placement of the offender upon unsupervised probation with or without special conditions, or with or without the imposition of a fine as provided by law for the offense; (2) Impose a sentence involving an Accountability Level II sanction. — Such a sanction includes a placement of the offender upon supervised probation amounting to field supervision rather than intensive supervision, with or without special conditions, or with or without the imposition of a fine as provided by law for the offense; (3) Impose a sentence involving an Accountability Level III sanction. — Such sanctions include placement of the offender upon intensive supervision or placement of the offender upon community service, with or without special conditions, or with or without the imposition of a fine as provided by law for the offense. Such intensive supervision shall entail at least the equivalent of 1 hour of supervision per day and no more than 56 hours of supervision per week; (4) Impose a sentence involving an Accountability Level IV sanction. — Such sanctions include placement of the offender upon partial confinement under house arrest under the supervision of the Department of Correction or commitment of the offender to the Department of Correction under partial confinement to a half-way house or restitution center or placement of the offender in a residential treatment facility, all with or without special conditions, and all with or without the imposition of a fine as provided by law for the offense; (5) Impose a sentence involving an Accountability Level V sanction. — Such a sentence consists of the commitment of the offender to the Department of Correction for a period of incarceration, with or without the imposition of a fine provided by law for the offense; (6) Impose a period of incarceration, with or without the imposition of a fine provided by law for the offense, and placement of the offender in a less restrictive sanction, with or without special conditions, to commence when the offender is released from incarceration; (7) Suspend the imposition or execution of sentence, or suspend a portion thereof; (8) Impose any sentence as authorized in this subsection to include any special condition such as the payment of restitution to the victim or victims of the crime for which the offender is being sentenced and/or participation in a drug/alcohol outpatient treatment program, job training program, mental health treatment program, education program, community service program or other like programs. With regard to any such programs, the offender may be ordered to pay a fee covering, in whole or in part, the costs of such program and such fees shall be based upon the offender’s ability to pay therefor; (9) Wherever a victim of crime suffers a monetary loss as a result of the defendant’s criminal conduct, the sentencing court shall impose as a special condition of the sentence that the defendant make payment of restitution to the victim in such amount as to make the victim whole, insofar as possible, for the loss sustained. Notwithstanding any law, rule or regulation to the contrary, for the purposes of ensuring the payment of restitution the court shall retain jurisdiction over the offender until the amount of restitution ordered has been paid in full; (10) Whenever restitution is ordered pursuant to paragraph (c)(9) of this section or any other applicable statute or rule, and if deemed appropriate to ensure or facilitate the collection of restitution from the defendant or if otherwise required by statute, the court may impose a sentence involving an Accountability Level I—Restitution Only sanction. Such a sanction shall be limited to the placement of the offender upon unsupervised probation, and the conditions of such probation shall be limited to those that are necessary to ensure or facilitate the collection of restitution. No offender shall be found to be in violation of the conditions of such a sanction unless the offender is found to be in violation of an applicable restitution order. (d) Notwithstanding anything in this Criminal Code to the contrary, probation or a suspended sentence shall not be substituted for imprisonment where the statute specifically indicates that a prison sentence is a mandatory sentence, a minimum sentence, a minimum mandatory sentence or a mandatory minimum sentence, or may not otherwise be suspended. (e) The court may authorize the payment of a fine in installments. When imposing probation the court shall direct that the offender be subject to the supervision of the Department of Correction and the court order shall specify those conditions under which the offender may remain at liberty on probation. (f) In committing an offender to the Department of Correction the court shall fix the maximum term of incarceration. (g) Where modification of judgment is not provided by rule of court, the court may modify a judgment within 90 days after it is ordered. Dispositions other than commitment to the Department of Correction, and such commitments which are revoked, shall not entail the loss by the offender of any civil rights, except as provided in the state Constitution. (h) The court may direct that a person placed on probation be released on entering into a recognizance, with or without surety, during such period as the court directs, to appear and receive sentence when called upon, and, in the meantime, to keep the peace and be of good behavior. (i) The court may, if it thinks proper, direct that the offender pay the costs of the prosecution or some portion thereof, and may further impose terms and conditions to be complied with by the offender during any period which it deems proper. (j) At any time within the period mentioned in the recognizance, but not afterwards, the court may, upon being satisfied by information on oath that the offender has failed to observe any of the conditions of recognizance, or any of the terms or conditions of probation, issue an order for the offender’s apprehension and thereupon, after proper hearing, impose sentence upon the offender. (k) (1) Except as provided in this subsection, notwithstanding any statute, rule, regulation or guideline to the contrary, the court may direct as a condition to a sentence of imprisonment to be served at Level V or otherwise that all or a specified portion of said sentence shall be served without benefit of any form of early release, good time, furlough, work release, supervised custody or any other form of reduction or diminution of sentence. (2) For the purposes of this subsection, statutes which authorize early release, good time, furlough, work release, supervised custody, or reduction or diminution of sentence include §§ 4205(h) and (i), 4206(g) and (h), 4381, 6533, 6533A [repealed] and 6537-6539 of this title, but do not include § 4217 of this title. (3) The provisions of this subsection shall be applicable only to sentences of imprisonment at Level V for 1 year or less, or to sentences of imprisonment at Level V which are equal to the statutory maximum Level V sentence available for the crime or offense. ( l ) Except when the court imposes a life sentence or sentence of death, whenever a court imposes a period of incarceration at Level V custody for 1 or more offenses that totals 1 year or more, then that court must include as part of its sentence a period of custodial supervision at either Level IV, III or II for a period of not less than 6 months to facilitate the transition of the individual back into society. The 6-month transition period required by this subsection may, at the discretion of the court, be in addition to the maximum sentence of imprisonment established by the statute. (m) As a condition of any sentence, and regardless of whether such sentence includes a period of probation or suspension of sentence, the court may order the offender to engage in a specified act or acts, or to refrain from engaging in a specified act or acts, as deemed necessary by the court to ensure the public peace, the safety of the victim or the public, the rehabilitation of the offender, the satisfaction of the offender’s restitution obligation to the victim or the offender’s financial obligations to the State, or for any other purpose consistent with the interests of justice. The duration of any order entered pursuant to this subsection shall not exceed the maximum term of commitment provided by law for the offense or 1 year, whichever is greater; provided that in all cases where no commitment is provided by law the duration of such order shall not exceed 1 year. A violation of any order issued pursuant to this subsection shall be prosecuted pursuant to § 1271 of this title. Any such prosecution pursuant to § 1271 of this title shall not preclude prosecution under any other provision of this Code. (n) Whenever a court imposes a sentence inconsistent with the presumptive sentences adopted by the Sentencing Accountability Commission [repealed], such court shall set forth on the record its reasons for imposing such penalty.

Del. Code tit. 11, § 4204A Youth convicted in Superior Court.

(a) [Repealed.] (b) When a child who has not reached that child’s eighteenth birthday is sentenced in Superior Court to a period of incarceration, such sentence shall initially be served in a juvenile facility upon imposition of the sentence and such child shall remain in the custody of or be transferred forthwith to the Division of Youth Rehabilitative Services until the child’s eighteenth birthday, at which time such child shall be transferred forthwith to the Department of Correction to serve the remaining portion of said sentence. (1) If a child has reached the child’s sixteenth birthday has been sentenced in Superior Court, the Department of Services for Children, Youth and Their Families (“The Department”) may file a motion in Superior Court to place the child in a secured detention facility other than a facility operated by the Department because the Department’s secured detention facilities are at or beyond capacity or the child poses a security risk to self or other youth served by the Department in the facilities it operates. If a motion is filed, Superior Court shall conduct an evidentiary hearing unless the parties reach an agreement. (2) After an evidentiary hearing, the Superior Court may order the child to be placed in a secured detention facility not operated by the Department if the Court finds by clear and convincing evidence that the Department’s secured detention facilities are at or beyond capacity and the child’s safety or health is at risk by remaining at a facility operated by the Department. If the Court makes such a finding, the Department shall thereafter provide the Court with a status on the capacity of the Department’s secured detention facilities at least weekly, and no child may be held in a secured detention facility for adults for more than 30 days. (3) After an evidentiary hearing, the Superior Court may order the child to be placed in a secured detention facility not operated by the Department if the Court finds by clear and convincing evidence that the child is a danger to self or other youth served by the Department in the facilities it operates and the child’s needs would be better served at a facility not operated by the Department. (c) [Repealed.] (d) (1) Notwithstanding any provision of this title to the contrary, any offender sentenced to an aggregate term of incarceration in excess of 20 years for any offense or offenses other than murder first degree that were committed prior to the offender’s eighteenth birthday shall be eligible to petition the Superior Court for sentence modification after the offender has served 20 years of the originally imposed Level V sentence. (2) Notwithstanding any provision of this title to the contrary, any offender sentenced to a term of incarceration for murder first degree when said offense was committed prior to the offender’s eighteenth birthday shall be eligible to petition the Superior Court for sentence modification after the offender has served 30 years of the originally imposed Level V sentence. (3) Notwithstanding any provision of this subsection or title to the contrary, any offender who has petitioned the Superior Court for sentence modification pursuant to this subsection shall not be eligible to submit a second or subsequent petition until at least 5 years have elapsed since the date on which the Court ruled upon the offender’s most recent petition. Further, the Superior Court shall have the discretion at the time of each sentence modification hearing to prohibit a subsequent sentence modification petition for a period of time in excess of 5 years if the Superior Court finds there to be no reasonable likelihood that the interests of justice will require another hearing within 5 years. (4) Notwithstanding the provisions of § 4205 or § 4217 of this title, any court rule or any other provision of law to the contrary, a Superior Court Judge upon consideration of a petition filed pursuant to this subsection (d), may modify, reduce or suspend such petitioner’s sentence, including any minimum or mandatory sentence, or a portion thereof, in the discretion of the Court. Nothing in this section, however, shall require the Court to grant such a petitioner a sentence modification pursuant to this section. (5) The Superior Court shall have the authority to promulgate appropriate rules to regulate the filing and litigation of sentence modification petitions pursuant to this paragraph.

Del. Code tit. 11, § 4205 Sentence for felonies.

(a) A sentence of incarceration for a felony shall be a definite sentence. (b) The term of incarceration which the court may impose for a felony is fixed as follows: (1) For a class A felony not less than 15 years up to life imprisonment to be served at Level V except for conviction of first degree murder in which event § 4209 of this title shall apply. (2) For a class B felony not less than 2 years up to 25 years to be served at Level V. (3) For a class C felony up to 15 years to be served at Level V. (4) For a class D felony up to 8 years to be served at Level V. (5) For a class E felony up to 5 years to be served at Level V. (6) For a class F felony up to 3 years to be served at Level V. (7) For a class G felony up to 2 years to be served at Level V. (c) In the case of the conviction of any felony, the court shall impose a sentence of Level V incarceration where a minimum sentence is required by subsection (b) of this section and may impose a sentence of Level V incarceration up to the maximum stated in subsection (b) of this section for each class of felony. (d) Where a minimum, mandatory, mandatory minimum or minimum mandatory sentence is required by subsection (b) of this section, such sentence shall not be subject to suspension by the court. (e) Where no minimum sentence is required by subsection (b) of this section, or with regard to any sentence in excess of the minimum required sentence, the court may suspend that part of the sentence for probation or any other punishment set forth in § 4204 of this title. (f) Any term of Level V incarceration imposed under this section must be served in its entirety at Level V, reduced only for earned “good time” as set forth in § 4381 of this title. (g) No term of Level V incarceration imposed under this section shall be served in other than a full custodial Level V institutional setting unless such term is suspended by the court for such other level sanction. (h) The Department of Correction, the remainder of this section notwithstanding, may house Level V inmates at a Level IV work release center or halfway house during the last 180 days of their sentence; provided, however, that the first 5 days of any sentence to Level V, not suspended by the court, must be served at Level V. (i) The Department of Correction, the remainder of this section notwithstanding, may grant Level V inmates 48-hour furloughs during the last 120 days of their sentence to assist in their adjustment to the community. (j) No sentence to Level V incarceration imposed pursuant to this section is subject to parole. (k) In addition to the penalties set forth above, the court may impose such fines and penalties as it deems appropriate. (l) In all sentences for less than 1 year the court may order that more than 5 days be served in Level V custodial setting before the Department may place the offender in Level IV custody.

Del. Code tit. 11, § 4205A Additional penalty for serious sex offenders or pedophile offenders.

(a) Notwithstanding any provision of this chapter or any other laws to the contrary, the Superior Court, upon the State’s application, shall sentence a defendant convicted of any crime set forth in § 771(a)(2), § 772, § 773, § 776, § 777, § 777A, § 778(1) or (2) of this title to not less than 25 years up to life imprisonment to be served at Level V if 1 of the following apply: (1) The defendant has previously been convicted or adjudicated delinquent of any sex offense set forth in this title and classified as a class A or B felony, or any similar offense under the laws of another state, the United States or any territory of the United States. (2) The victim of the instant offense is a child less than 14 years of age. (b) [Repealed.] (c) Notwithstanding any provision of this chapter or any other laws to the contrary, the Superior Court, upon the State’s application, shall sentence a defendant convicted of any crime set forth in subsection (a) of this section to an additional 5 years to be served at Level V for any sentence imposed under subsection (a) of this section if the victim of the crime set forth in subsection (a) of this section is a child less than 7 years of age. (d) (1) Notwithstanding any provision of this chapter or any other laws to the contrary, the Superior Court, upon the State’s application, shall sentence a defendant convicted of any crime set forth in § 769 or § 783(4) of this title to not less than 5 years to be served at Level V if the victim of the crime is a child less than 7 years of age. (2) Notwithstanding any provision of this chapter or any other laws to the contrary, the Superior Court, upon the State’s application, shall sentence a defendant convicted of a crime set forth in § 783A(4) of this title to not less than 10 years to be served at Level V if the victim of the crime is a child less than 7 years of age.

Del. Code tit. 11, § 4206 Sentence for misdemeanors.

(a) The sentence for a class A misdemeanor may include up to 1 year incarceration at Level V and such fine up to $2,300, restitution or other conditions as the court deems appropriate. (b) The sentence for a class B misdemeanor may include up to 6 months incarceration at Level V and such fine up to $1,150, restitution or other conditions as the court deems appropriate. (c) The sentence for an unclassified misdemeanor shall be a definite sentence fixed by the court in accordance with the sentence specified in the law defining the offense. If no sentence is specified in such law, the sentence may include up to 30 days incarceration at Level V and such fine up to $575, restitution or other conditions as the court deems appropriate. Notwithstanding the foregoing, in any municipality with a population greater than 50,000 people, any offense under the building, housing, health or sanitation code which is classified therein as a misdemeanor, the sentence for any person convicted of such a misdemeanor offense shall include the following fines and may include restitution or such other conditions as the court deems appropriate: (1) For the first conviction: no less than $250, nor more than $1,000; (2) For the second conviction for the same offense; no less than $500, nor more than $2,500; and (3) For all subsequent convictions for the same offense: no less than $1,000 nor more than $5,000. In any municipality with a population greater than 50,000 people, a conviction for a misdemeanor offense, which is defined as a “continuing” or “ongoing” violation, shall be considered a single conviction for the purposes of paragraphs (c)(1)-(3) of this section. For all convictions subsequent to the second, the minimum fines required herein shall not be suspended, but such amounts imposed over the minimum may be suspended or subject to such other conditions as the court deems appropriate. The provisions of this subsection relating to municipalities with a population greater than 50,000 people shall not apply to offenses or convictions involving single family residences that are occupied by an owner of the property. (d) The court may suspend any sentence imposed under this section for probation or any of the other sanctions set forth in § 4204 of this title. (e) Any term of Level V incarceration imposed under this section must be served in its entirety at Level V, reduced only for earned “good time” as set forth in § 4381 of this title. (f) No term of Level V incarceration imposed under this section shall be served in other than a full custodial Level V institutional setting unless such term is suspended by the court for such other level sanction. (g) The Department of Correction, the remainder of this section notwithstanding, may house Level V inmates at a Level IV work release center or halfway house during the last 180 days of their sentence; provided, however, that the first 5 days of any sentence to Level V, not suspended by the court, must be served at Level V. (h) The Department of Correction, the remainder of this section notwithstanding, may grant Level V inmates 48-hour furloughs during the last 120 days of their sentence to assist in their adjustment to the community. (i) Any sentence for issuing a worthless check pursuant to § 900 of this title shall require restitution to the person to whom the check was given. For the purposes of this subsection, restitution shall mean the amount for which the check was written plus a service fee of $30 for processing a worthless check, or a fee of $50 if more than 1 check by same person was processed. (j) In all sentences for less than 1 year the court may order that more than 5 days be served in Level V custodial setting before the Department may place the offender in Level IV custody.

Del. Code tit. 11, § 4207 Sentences for violations.

(a) The Court may impose a fine of up to $345 for the first offense of any violation, up to $690 for the second offense of that same violation and up to $1,150 for the third offense of the same violation; provided, that only violations which occurred within 5 years of the violation for which sentence is imposed shall be considered in determining sentence. (b) The Court may impose a period of Level I probation up to 1 year for any violation.

Del. Code tit. 11, § 4208 Fines for organizations.

A sentence to pay a fine, when imposed on an organization, shall be the amount specified in the law setting forth the offense if a penalty is specified in that law, or, if there is no specific penalty defined in the law setting forth the offense, a sentence to pay a fine when imposed on an organization shall be as follows: (1) For a felony or a misdemeanor resulting in death or serious physical injury, such fine as the court deems reasonable and appropriate; (2) For a felony that does not result in death or serious physical injury, not more than $500,000; (3) For a class A misdemeanor that results in physical injury, not more than $250,000; (4) For a class A misdemeanor that does not result in physical injury, not more than $100,000; (5) For a class B misdemeanor, class C or unclassified misdemeanor that results in physical injury, not more than $75,000; (6) For a class B misdemeanor, class C or unclassified misdemeanor that does not result in physical injury, not more than $50,000; or (7) For a violation, not more than $10,000. If the defendant derives pecuniary gain from the offense, or if the offense results in pecuniary loss or damage to a person or organization other than the defendant, the defendant may be fined an amount equal to 3 times the amount of the pecuniary gain or 3 times the value of the pecuniary loss or damage incurred in lieu of the penalties set forth in paragraphs (1)-(7) of this section.

Del. Code tit. 11, § 4209 Punishment for first-degree murder committed by adult offenders.

(a) Punishment for first-degree murder. — Any person who is convicted of first-degree murder for an offense that was committed after the person had reached the person’s eighteenth birthday shall be punished by imprisonment for the remainder of the person’s natural life without benefit of probation or parole or any other reduction. (b)-(h) [Repealed.]

Del. Code tit. 11, § 4209A Punishment for first-degree murder committed by juvenile offenders.

Any person who is convicted of first-degree murder for an offense that was committed before the person had reached the person’s eighteenth birthday shall be sentenced to term of incarceration not less than 25 years to be served at Level V up to a term of imprisonment for the remainder of the person’s natural life to be served at Level V without benefit of probation or parole or any other reduction.

Del. Code tit. 11, § 4210 Arrest and disposition of intoxicated persons.

(a) Any intoxicated person taken into custody for a violation of § 1315 of this title shall immediately be taken to a detoxification center where the person shall be admitted as a patient. (1) The arresting officer shall leave a summons for such intoxicated person with the chief medical officer of the detoxification center ordering such intoxicated person to appear before a justice of the peace at a date not to exceed a period of 5 days from the date of admission to the center. (2) The intoxicated person shall be given a physical examination to determine the possible existence of any disease or ailment which threatens the health or safety of such individual; and upon a finding of any such disease or ailment, the medical staff of the detoxification center shall give such treatment as it deems necessary and practicable. (b) Upon regaining sobriety and being informed of the person’s physical condition, the person in custody shall inform the chief medical officer of the detoxification center as to whether, until such time as the person is to appear for trial, the person wishes to remain a patient or be released from custody. (c) Should the person in custody validly consent to remain as a patient and to undergo testing procedures, the person shall be tested to determine if the person is a chronic alcoholic. A diagnosis of chronic alcoholism shall serve as an affirmative defense to violations of § 1315 of this title. (d) Should it be shown to the satisfaction of the court that the person accused of intoxication suffers from chronic alcoholism, the person shall be acquitted of the charge of drunkenness and: (1) Released from custody; or (2) Temporarily released from custody under such conditions of treatment as the court may prescribe; such period of temporary release shall not exceed 1 year after which defendant shall be unconditionally released.

Del. Code tit. 11, § 4211 Payment of expenses.

Any person treated under § 4210 of this title shall, any law to the contrary notwithstanding, be responsible for the incurred expenses, and shall be billed for same by the Department of Mental Health.

Del. Code tit. 11, § 4212 Definitions relating to §§ 4210 and 4211.

For the purposes of §§ 4210 and 4211 of this title, the following words and phrases shall have the meanings respectively ascribed to them: (1) “Chronic alcoholic” shall mean a person who compulsively and habitually uses alcoholic beverages to the extent that they injure the person’s health and interfere with the person’s social and economic functioning. (2) “Detoxification center” shall mean a medical facility, approved by the Department of Health and Social Services, or its successor, which shall provide appropriate medical services for intoxicated persons, including initial examination, diagnosis and temporary treatment. (3) “Intoxicated person” shall mean a person whose powers of self-control have been substantially impaired because of the consumption of alcohol. (4) “Sobriety” shall mean an individual’s state of being when not under the influence of alcohol. (5) “Valid consent” shall mean the voluntary giving of assent to testing procedures by a legally competent person; in the case of a minor or incompetent, such assent shall be obtained from a parent or guardian of the individual or in the absence of either, a person in loco parentis, to undergo testing.

Del. Code tit. 11, § 4213 Arrest of persons under the influence of drugs; drug detoxification centers.

(a) For purposes of this section only, the following phrases shall have meanings respectively ascribed to them: (1) “A person under the influence of drugs” shall mean a person whose powers of self-control have been substantially impaired because of the consumption of a drug described in Chapter 47 of Title 16. (2) “Drug abuser” shall mean any person who compulsively and habitually uses drugs to the extent that they injure the person’s health and interfere with the person’s social and economic functioning. (b) The Director of the Division of Substance Abuse and Mental Health (“Director”) shall designate certain hospital, clinic, or other treatment facilities as “drug detoxification centers.” The Director shall so designate such a facility only when the Director is satisfied that the facility has the medical and other staff, as well as the equipment, to diagnose and treat drug abusers as provided for in this section. (c) Upon arrest for any crime which is not a felony under this title or Title 16, an arrestee who believes that the arrestee is under the influence of drugs as defined in subsection (a) of this section shall have the right to request immediate admission to a drug detoxification center. Upon such request, the arresting officer shall, as soon as transportation is available and as soon as conditions at the scene of the arrest permit, arrange to have the arrestee transported to the nearest available drug detoxification center. (1) No expression of a desire to be admitted to a drug detoxification center shall be admissible in evidence in any criminal prosecution against the arrestee. (2) Notwithstanding any provision of this Code to the contrary, no arrestee shall be heard to object in any court to failure to arraign the arrestee before a magistrate during the period of transportation to or stay in a drug detoxification center, or for a reasonable time not to exceed 24 hours after release. (3) An arresting officer shall, when the officer suspects an arrestee of being under the influence of drugs, inform the arrestee of the rights under this section. (4) No arrestee may revoke a request to be taken to a drug detoxification center after having made that request, and any drug detoxification center to which an arrestee is brought must consent to admission and testing of the arrestee, subject to limitations of facilities and staff. (d) A drug detoxification center shall initially test admittees under this section to determine if they are under the influence of drugs or are drug abusers. If tests prove negative, the admittee shall be released forthwith to the custody of the arresting authorities. Any arrestee requesting admission to a drug detoxification center is deemed to consent to all medical and psychiatric tests considered necessary by the center to carry out its function under this section. The results of tests taken at a drug detoxification center or statements made by admittees under this section to drug detoxification center staff shall not be admissible as evidence in a criminal prosecution against the admittee. (e) Admittees under this section whom the drug detoxification center determines to be drug abusers shall be asked if they wish to receive further treatment. Those consenting to further treatment shall remain until discharged by the drug detoxification center or until they wish to leave. No one admitted under this section shall be permitted to leave the drug detoxification center until the arresting police agency is notified. (f) Upon a satisfactory showing to the court that a person is a drug abuser as defined in subsection (a) of this section and has completed treatment under this section in a manner satisfactory to the chairperson of the drug diagnostic team at the drug detoxification center to which the person was admitted, the charge of consumption or use of the drug, under Chapter 47 of Title 16, shall be dismissed. (g) Whenever a police officer sees a person whom the officer believes to have taken drugs and needs medical treatment, the police officer may take that person into custody and arrange to have the person taken to a drug detoxification center or arrange to secure other medical help. This subsection shall apply whether or not the officer may under the circumstances lawfully arrest the person whom the officer believes to have taken drugs. No officer acting in good faith shall be subject to criminal or civil liability for any action under this subsection. (h) To further the implementation of this section, the Director of the Division of Substance Abuse and Mental Health may prescribe regulations for the operation of drug detoxification centers and may assist such drug detoxification centers by distributing to them such funds as the General Assembly may from time to time appropriate to the Director for expenditure on their behalf.

Del. Code tit. 11, § 4214 Habitual criminal; life sentence

(a) Any person who has been 2 times convicted of a Title 11 violent felony, or attempt to commit such a violent felony, as defined in § 4201(c) of this title under the laws of this State, and/or any comparable violent felony as defined by another state, United States or any territory of the United States, and who shall thereafter be convicted of a subsequent Title 11 violent felony, or attempt to commit such a violent felony, as defined in § 4201(c) of this title, or any person who has been 3 times convicted of any felony under the laws of this State, and/or any other state, United States or any territory of the United States, and who shall thereafter be convicted of a subsequent felony is declared to be an habitual criminal. The court, upon the State’s petition, shall impose the applicable minimum sentence pursuant to subsection (b), (c) or (d) of this section and may, in its discretion, impose a sentence of up to life imprisonment, unless the felony conviction allows and results in the imposition of capital punishment. Under no circumstances may the sentence imposed pursuant to this section be less than the minimum sentence provided for by the felony prompting the person’s designation as a habitual offender. (b) Any person who has been 3 times convicted of a felony under the laws of this State, and/or any other state, United States or any territory of the United States, and who shall thereafter be convicted of a subsequent felony, which is the person’s first Title 11 violent felony, or attempt to commit such a violent felony, as defined in § 4201(c) of this title, shall receive a minimum sentence of ½ of the statutory maximum penalty provided elsewhere in this title, unless the maximum statutory penalty is life in which case the minimum sentence shall be 30 years, for the subsequent felony which forms the basis of the States petition to have the person declared to be an habitual criminal, up to life imprisonment, unless the felony conviction allows and results in the imposition of capital punishment. (c) Any person who has been 2 times convicted of a felony under the laws of this State, and/or any other state, United States or any territory of the United States, and 1 time convicted of a Title 11 violent felony, or attempt to commit such a violent felony, as defined in § 4201(c) of this title under the laws of this State, and/or any comparable violent felony as defined by another state, United States or any territory of the United States, and who shall thereafter be convicted of a subsequent Title 11 violent felony, or attempt to commit such a violent felony, as defined by § 4201(c) of this title, shall receive a minimum sentence of the statutory maximum penalty provided elsewhere in this title for the fourth or subsequent felony which forms the basis of the State’s petition to have the person declared to be an habitual criminal, up to life imprisonment, unless the felony conviction allows and results in the imposition of capital punishment. (d) Any person who has been 2 times convicted of a Title 11 violent felony, or attempt to commit such a violent felony, as defined in § 4201(c) of this title under the laws of this State, and/or any comparable violent felony as defined by another state, United States or any territory of the United States, and who shall thereafter be convicted of a third or subsequent felony which is a Title 11 violent felony, or an attempt to commit such a violent felony, as defined in § 4201(c), shall receive a minimum sentence of the statutory maximum statutory penalty provided elsewhere in this title for the third or subsequent Title 11 violent felony which forms the basis of the State’s petition to have the person declared to be an habitual criminal, up to life imprisonment, unless the felony conviction allows and results in the imposition of capital punishment. (e) Notwithstanding any provision of this title to the contrary, any minimum sentence required to be imposed pursuant to subsection (b), (c), or (d) of this section shall not be subject to suspension by the court, and shall be served in its entirety at full custodial Level V institutional setting without the benefit of probation or parole, except that any such sentence shall be subject to the provisions of §§ 4205(h), 4381 and 4382 of this title. For purposes of the computation of good time under § 4381 of this title, a life sentence imposed pursuant only to this section shall equate to a sentence of 45 years. (f) Notwithstanding any statute, court rule or regulation to the contrary, beginning January 1, 2017, any person sentenced as an habitual criminal to a minimum sentence of not less than the statutory maximum penalty for a violent felony pursuant to subsection (a) of this section, or a life sentence pursuant to subsection (b) of this section prior to July 19, 2016, shall be eligible to petition the Superior Court for sentence modification after the person has served a sentence of incarceration equal to any applicable mandatory sentence otherwise required by this section or the statutes describing said offense or offenses, whichever is greater. Absent extraordinary circumstances, the petitioner may only file 1 application for sentence modification under this section. A Superior Court Judge upon consideration of a petition filed pursuant to this subsection may modify, reduce or suspend such petitioner’s sentence, excepting any minimum or mandatory sentence required by this section or the statutes describing said offense or offenses. If a Superior Court Judge modifies such petitioner’s sentence, the Judge may impose a suspended sentence that includes a probationary term. Nothing in this section, however, shall require the Court to grant such a petitioner a sentence modification pursuant to this section. For the purposes of this subsection, the “applicable mandatory sentence’' shall be calculated by reference to the penalties prescribed for the relevant offense or offenses by this Code as of July 19, 2016, unless said offense has been repealed, in which case the penalties prescribed by this Code at the time of the act repealing said offense shall be controlling. The Superior Court shall establish rules to implement this subsection which are consistent with the statute, and those rules shall also provide that all petitions filed pursuant to this subsection where the felony establishing an inmate as a habitual offender was a Title 16 offense are heard first, followed by all petitions filed pursuant to this subsection where the felony establishing an inmate as a habitual offender was a crime against property, followed by all other petitions. Nothing in the rules or this subsection shall prohibit the Superior Court from hearing any petition without regard to this preferred sequence when the Department of Justice, through the personal authorization of the Attorney General, Chief Deputy Attorney General, State Prosecutor, or the Chief Prosecutor of a particular county, in response to a request authorized by the Chief Defender, Chief Deputy Defender, or Chief Conflicts Counsel, or private counsel if a petitioner is not represented by the Office of Defense Services, consents to the hearing of that petition and the Superior Court determines it is in the interest of justice to do so. The rules shall also provide for an initial review, including review of a formal response by the Department of Justice after consulting with the victim or victims, of sentence modification petitions involving crimes against persons or property, for the purpose of ensuring that victims are not inconvenienced by petitions that should be denied based upon the documents submitted; in cases not denied in this manner, all victims shall be given an opportunity to be heard. The Superior Court’s review of any petitions filed pursuant to this subsection shall include a review of the applicant’s prior criminal history, including arrests and convictions, a review of the applicant’s conduct while incarcerated, and available evidence as to the likelihood that the applicant will reoffend if released, including a formal, recent risk assessment. The Superior Court shall articulate on the record the results of its review and its rationale for granting or denying a petition. In all cases where sentence modifications are granted, modified sentences should provide for step-down provisions to ensure successful reintegration of persons into the community. By January 1, 2017, the Department of Correction shall notify any criminal defendant whose Level V sentence was imposed under a statutory sentencing regimen which was subsequently changed in a manner that reduced the sentence applicable to the defendant’s convictions, including any criminal defendant who received a minimum mandatory sentence that no longer exists by virtue of the enactment of 80 Del. Laws, c. 28. The Department of Correction shall similarly notify the attorney of record, and if the attorney of record is unavailable to receive notice, the Office of Defense Services.

Del. Code tit. 11, § 4215 Sentence of greater punishment because of previous conviction.

(a) If at the time of sentence, it appears to the court that the conviction of a defendant constitutes a second or other conviction making the defendant liable to a punishment greater than the maximum which may be imposed upon a person not so previously convicted, the court shall fully inform the defendant as to such previous conviction or convictions and shall call upon the defendant to admit or deny such previous conviction or convictions. If the defendant shall admit the previous conviction or convictions, the court may impose the greater punishment. If the defendant shall stand silent or if the defendant shall deny the prior conviction or convictions, the defendant shall be tried upon the issue of previous conviction; provided, however, that the foregoing procedure shall not apply in cases of fourth offenders liable to sentence of life imprisonment under § 4214 of this title. (b) If, at any time after conviction and before sentence, it shall appear to the Attorney General or to the Superior Court that, by reason of such conviction and prior convictions, a defendant should be subjected to § 4214 of this title, the Attorney General shall file a motion to have the defendant declared an habitual criminal under § 4214 of this title. If it shall appear to the satisfaction of the Court at a hearing on the motion that the defendant falls within § 4214 of this title, the Court shall enter an order declaring the defendant an habitual criminal and shall impose sentence accordingly.

Del. Code tit. 11, § 4215A Sentence of greater punishment because of previous conviction under prior law or the laws of other jurisdictions.

(a) Notwithstanding any provision of law to the contrary, if a previous conviction for a specified offense would make the defendant liable to a punishment greater than that which may be imposed upon a person not so convicted, that previous conviction shall make the defendant liable to the greater punishment if that previous conviction was: (1) For an offense specified in the laws of this State or for an offense which is the same as, or equivalent to, such offense as the same existed and was defined under the laws of this State existing at the time of such conviction; or (2) For an offense specified in the laws of any other state, local jurisdiction, the United States, any territory of the United States, any federal or military reservation, or the District of Columbia which is the same as, or equivalent to, an offense specified in the laws of this State. (b) This section shall apply to any offense or sentencing provision defined in this Code unless the statute defining such offense or sentencing provision or a statute directly related thereto expressly provides that this section is not applicable to such offense or sentencing provision.

Del. Code tit. 11, § 4216 Transition provisions.

(a) Where an inmate is serving a sentence to Level V (incarceration) imposed not under the Truth in Sentencing Act of 1989 and receives a subsequent sentence to Level V under the provisions of the Truth in Sentencing Act, serving of the earlier sentence shall be suspended and the inmate shall serve the new Level V sentence until it is completed and then resume serving the original sentence. (b) Where an inmate is serving a “nonmandatory” Level V (incarceration) sentence and is subsequently sentenced to a mandatory term of incarceration, serving of the earlier sentence shall be suspended and the inmate shall serve the new mandatory Level V sentence until it is completed and then resume serving the earlier sentence. (c) Where an inmate is serving Level V (incarceration) sentence or sentences imposed not under the Truth in Sentencing Act of 1989, and is subsequently sentenced to Level V under the provisions of the Truth in Sentencing Act and had less than an aggregate 3 years remaining on the prior sentence or sentences, the court at the time of sentencing under the Truth in Sentencing Act may in its discretion suspend the remainder of the prior non-Truth in Sentencing Level V sentence or sentences, unless such sentence was a statutory mandatory term. (d) Any individual convicted of a crime on or after January 1, 1990, which crime occurred prior to June 30, 1990, may elect to be sentenced under the provisions of the Truth in Sentencing Act of 1989 rather than under the prior provisions of this title.

Del. Code tit. 11, § 4217 Jurisdiction over sentence retained; sentence modification process.

(a) (1) For purposes of this section, “person” means an individual serving an aggregate sentence of incarceration at Level V in excess of 1 year. (2) If a court imposes an aggregate sentence of incarceration at Level V in excess of 1 year, the court retains jurisdiction over the person to modify the sentence to reduce the level of custody or time to be served under this section. (3) A person may apply for a sentence modification under this section if any of the following apply: a. The application for a sentence modification is based solely on the person’s serious medical illness or infirmity. b. The person is 60 years of age or older, has served at least 15 years of the originally imposed Level V sentence, and the application for sentence modification is based solely on the person’s rehabilitation. c. The person has served at least 25 years of the originally imposed Level V sentence and the application for sentence modification is based solely on the person’s rehabilitation. (4) A person who is eligible to apply for a sentence modification under paragraph (a)(3) of this section may apply for the sentence modification even if the person is sentenced to a statutorily mandated term of incarceration at Level V that is imposed for a conviction of an offense under this or another title. (5) Except as provided in paragraphs (a)(3) and (a)(4) of this section, a person is not eligible for a sentence modification under this section if any of the following apply: a. The person is serving a sentence of incarceration at Level V imposed for a conviction of a Title 11 violent felony under § 4201(c) of this title and has not yet served ½ of the originally imposed Level V sentence. b. The person is serving a statutorily mandated term of incarceration at Level V for a conviction of any offense under this title and has not yet served all of the statutorily mandated portion of the Level V sentence. (b) (1) The court may modify the person’s sentence if the court finds all of the following: a. The court is authorized under subsection (a) of this section to consider the person for a sentence modification. b. Good cause for a sentence modification. c. The release of the person does not constitute a substantial risk to any of the following: 1. The community. 2. A victim of, or witness to, an offense that is the subject of the sentence modification. 3. The person’s own self. (2) An application for sentence modification may be filed under this section by any of the following: a. The person, or the person’s attorney, as provided under paragraph (a)(3) or (a)(5) of this section. b. The Department of Correction (“Department”), the person, or the person’s attorney, as provided under subsection (d) of this section. c. The Department, the person, or the person’s attorney, at any time other than as provided under subsection (d) of this section, if the basis for the application is the person’s serious medical illness or infirmity. (3) a. Except as provided under paragraph (b)(3)b. of this section, an application must include a copy of the Department’s written statement required under paragraph (d)(2)b. or (d)(3)a. of this section. b. An application filed under paragraph (a)(3)a. of this section is not required to include a copy of the Department’s written statement required under paragraph (d)(2)b. or (d)(3)a. of this section. (4) The court’s review of an application for sentence modification filed under this section shall include the court’s review of the facts of an offense that is the subject of the sentence modification, including the underlying circumstances and nature of the offense, the felony classification of the offense, the length of the underlying sentence, and the court’s finding as to all of the following: a. The person’s present likelihood of posing, and ability to pose, a substantial risk to any of the following: 1. The community. 2. A victim of, or witness to, an offense that is the subject of the sentence modification. 3. The person’s own self. b. For an application for a sentence modification based on rehabilitation, the person’s participation in programs during incarceration, including drug or alcohol counseling or treatment, education, or employment. c. For an application for a sentence modification based on serious medical illness or infirmity, all of the following: 1. The person’s diagnosis and likelihood of recovery. 2. The ability of the Department to meet the medical needs of the person. 3. The impact that the person’s continued incarceration may have on the general provision of medical care within the Department. (5) The court shall state on the record the court’s findings under paragraphs (b)(1) and (b)(4) of this section and the court’s rationale for granting or denying the application for sentence modification. (6) The court may summarily dismiss an application for a sentence modification for any of the following reasons: a. If the person is not eligible for a sentence modification under subsection (a) of this section. b. If the person submits a subsequent application before the expiration of the period determined by the court under paragraph (e)(4) or (e)(5) of this section. c. If the person’s application does not include a copy of the Department’s written statement, as required under paragraph (b)(3) of this section. d. If the court determines summary dismissal is warranted. (7) A person applying for sentence modification under this section has the right to counsel. a. On the Department’s completion of the eligibility review under paragraph (d)(1) of this section, the Department shall provide the person with information regarding the person’s right to counsel under this section. b. The person may retain a private attorney at the person’s expense. c. The person may request that the Court refer the person to the Office of Defense Services for representation. The Court shall refer the person to the Office of Defense Services if the Court does not summarily dismiss the person’s application under paragraph (b)(6) of this section. d. The person may proceed without an attorney only as provided under court rules. (8) The Department shall provide the person, or the person’s attorney of record, with access to any information in the possession of the Department reasonably necessary for the person’s application for a sentence modification. (9) The person, or the person’s attorney of record, may supplement or amend an application for a sentence modification filed by the Department or the person. (10) A party filing an application for sentence modification under this section must provide a copy of the application to the Department of Justice. (11) The court may adopt rules to implement this section. The rules should provide for a person to proceed without an attorney with permission of the court. (c) For purposes of this section: (1) “Good cause” includes rehabilitation of the person, serious medical illness or infirmity of the person, and prison overcrowding. (2) “Prison overcrowding” means the number of individuals who are incarcerated exceeds the operating capacity of a correctional facility that can be reasonably accommodated based on design, staffing, available programs, and services. (3) “Rehabilitation” means the process of restoring a person to a useful and constructive place in society especially through some form of vocational, correctional, or therapeutic training. (4) “Serious medical illness or infirmity” includes all of the following: a. Cognitively incapacitated . — As used in this paragraph (c)(4)a., “cognitively incapacitated” means suffering from a cognitive condition, such as dementia, that greatly impairs activities of daily living such as feeding, toileting, dressing, and bathing and renders incarceration of a person nonpunative and nonrehabilitative. b. Permanently physically incapacitated. — As used in this paragraph (c)(4)b., “permanently physically incapacitated” means suffering from any of the following: 1. A physical condition caused by injury, disease, or illness, such as a persistent vegetative state, that, to a reasonable degree of medical certainty, permanently and irreversibly physically incapacitates the person to the extent that the person needs help with most activities of daily living, such as feeding, toileting, dressing, and bathing, or that no significant physical activity is possible. 2. An incurable, progressive condition that substantially diminishes the person’s capacity to function in a correctional setting. c. Severely ill. — As used in this paragraph (c)(4)c., “severely ill” means suffering from a significant and permanent or chronic physical or mental condition that meets all of the following: 1. Requires extensive medical or behavioral health treatment with little to no possibility of recovery. 2. Significantly impairs rehabilitation. d. Terminally ill. — As used in this paragraph (c)(4)d., “terminally ill” means suffering from a condition caused by disease, illness, or injury, except self-inflicted injury, which, to a reasonable degree of medical certainty will lead to profound functional, cognitive, or physical decline, and likely will result in death within 18 months. (d) (1) For each person, the Department shall biennially determine all of the following: a. If the person may apply for a sentence modification under paragraph (a)(3) of this section or is not ineligible for a sentence modification under paragraph (a)(5) of this section. b. Whether the Department recommends the person for a sentence modification. For the Department to recommend a person for a sentence modification, the Department must find the requirements of paragraphs (b)(1)b. and (b)(1)c. of this section are met. (2) If the Department recommends a sentence modification, the Department, with the consent of the person, shall do all of the following: a. File an application for sentence modification with the court. b. Include with the application filed under paragraph (d)(2)a. of this section a written statement of the satisfied requirements of this section that form the Department’s basis for recommending the sentence modification. c. Provide notice of the application filed under paragraph (d)(2)a. of this section to the person, the person’s attorney of record, and, if the attorney of record is unavailable to receive notice, the Office of Defense Services. (3) If the Department does not recommend a sentence modification, the Department shall do all of the following: a. State in writing the Department’s reasons for not recommending a sentence modification, including the unsatisfied requirements of this section that form the Department’s basis for not recommending the sentence modification. b. Provide the writing required under paragraph (d)(3)a. of this section to the person, the person’s attorney of record, and, if the attorney of record is unavailable to receive notice, the Office of Defense Services. (4) If the Department provides notice under paragraph (d)(3) of this section, the person or the person’s attorney may file an application for sentence modification with the court on a form provided by the court if the person meets the eligibility criteria established under paragraph (a)(3) or (a)(5) of this section. The person or the person’s attorney shall attach a copy of the Department’s reasons for not recommending a sentence modification. (e) (1) On receipt of an application for sentence modification, the court may grant or deny the application or may request additional information. (2) If the application for sentence modification is based on the person’s serious medical illness or infirmity, the court may require the Department to submit a medical release plan for the person. The medical release plan may include all of the following: a. The proposed course of treatment. b. The proposed site for treatment and post-treatment care. c. The insurance program in place, which must include the person’s eligibility for enrollment in commercial insurance, Medicare, or Medicaid, or the person’s access to other adequate financial resources to cover the cost of care after release, including those under existing partnerships with agencies or organizations. d. Any other information requested by the court. (3) The court may not grant the application for sentence modification without first providing the Department of Justice and the victim of an offense that is the subject of the application with a reasonable period of time to be heard, in writing or in person, on the application. (4) Except as provided under paragraph (e)(5) of this section, if the court denies an application for sentence modification because the court finds the person constitutes a substantial risk under paragraph (b)(1)c. of this section, or because the court finds that the application lacks good cause, the person who is the subject of the denied application may not be the subject of a subsequent application for sentence modification for a period determined by the court not to exceed 3 years from the date of the denial. (5) If the court denies an application for sentence modification based on a person’s serious medical illness or infirmity, the person may submit a subsequent application if at least 60 days have passed since the date of the court’s denial and if the application demonstrates a material change in the person’s circumstances. (f) [Repealed.] (g) This section may not be construed to limit the court’s ability to modify a sentence within the scope of the court’s duly adopted rules. (h) The Department may adopt regulations to implement this section. The Department may not impose additional restrictions, exclusions, or eligibility requirements for persons seeking sentence modification under this section. (i) Reporting requirements. — (1) The Statistical Analysis Center shall annually prepare a report containing all of the following information provided to the Statistical Analysis Center by the following state agencies: a. From the Department, aggregated information including all of the following: 1. The number of persons who the Department determines under paragraph (d)(1)a. of this section are eligible for a sentence modification, with demographic data including race or ethnicity, gender, age, and correctional facility. 2. The number of applications submitted to the court by the Department under paragraph (d)(2) of this section and the basis for the application, with demographic data including race or ethnicity, gender, age, and correctional facility. 3. The number of persons for whom the Department did not recommend a sentence modification under paragraph (d)(3) of this section and a general reason for the Department’s decision, with demographic data including race or ethnicity, gender, age, and correctional facility. 4. The number of persons released from Level V custody under this section and the good cause on which the application is based, with demographic data including race or ethnicity, gender, age, and correctional facility. 5. Information on serious medical illness and infirmity experienced by persons incarcerated at the Department’s correctional facilities, including all of the following: A. The number of persons currently receiving full-time 1-on-1 medical care or assistance with activities of daily living within the Department’s correctional facilities and whether that care is provided by a medical practitioner or another individual, along with the facilities at which the persons are incarcerated. B. The number of persons who spent more than 1 month in outside hospital care during the previous year and the persons’ home correctional facility. C. Demographic data, including race or ethnicity, gender, age, and correctional facility, for each person under paragraphs (i)(1)a.5.A. and (i)(1)a.5.B of this section. b. 1. From the courts, all of the following: A. The number of persons granted a sentence modification under this section. B. The number of persons denied a sentence modification on the merits under this section. C. The number of persons whose application for sentence modification is summarily dismissed under paragraph (b)(6) of this section. 2. The Statistical Analysis Center shall report the data provided by the courts and use the data provided by the courts to report aggregated demographic data including race or ethnicity, gender, age, and correctional facility, and the good cause on which each application is based. (2) The Statistical Analysis Center shall annually publish the report on the Statistical Analysis Center’s website and submit the report to all of the following not later than October 1 of each year: a. The Chair of the Senate Corrections and Public Safety Committee. b. The Chair of the House of Representatives Corrections Committee. c. The Chief Justice. d. The Attorney General. e. The Chief Defender. f. The Director of the Division of Legislative Services. g. The State Archivist. h. The Governor.

Del. Code tit. 11, § 4218 Probation before judgment.

(a) Subject to the limitations set forth in this section, for a violation or misdemeanor offense under Title 4, 7, or this title, or for any violation or misdemeanor offense under Title 21 which is designated as a motor vehicle offense subject to voluntary assessment by § 709 of Title 21, or a violation of § 2702 of Title 14, or for violations of § 4166(d) of Title 21, or for violations of § 4172 of Title 21, or for a violation of a county or municipal code, or for a misdemeanor offense under § 4764, § 4771 or § 4774 of Title 16, or for a misdemeanor offense under § 4810(a) of Title 29, a court exercising criminal jurisdiction after accepting a guilty plea or nolo contendere plea may, with the consent of the defendant and the State, stay the entry of judgment, defer further proceedings, and place the defendant on “probation before judgment” subject to such reasonable terms and conditions as may be appropriate. The terms and conditions of any probation before judgment shall include the following requirements: (i) the defendant shall provide the court with that defendant’s current address; (ii) the defendant shall promptly provide the court with written notice of any change of address; and (iii) the defendant shall appear if summoned at any hearing convened for the purpose of determining whether the defendant has violated or fulfilled the terms and conditions of probation before judgment. The terms and conditions may include any or all of the following: (1) Ordering the defendant to pay a pecuniary penalty; (2) Ordering the defendant to pay court costs to the State; (3) Ordering the defendant to pay restitution; (4) Ordering the defendant to perform community service; (5) Ordering the defendant to refrain from contact with certain persons; and (6) Ordering the defendant to conduct themselves in a specified manner. The length of the period of probation before judgment shall be fixed by the court, but in no event shall the total period of probation before judgment exceed the maximum term of commitment provided by law for the offense or 1 year, whichever is greater. (b) This section shall not apply to any of the following: (1) Any Title 11 “domestic violence” offense as defined in § 1024(a) of Title 10. First offenders domestic violence diversion program. (2) Section 900A of this title. Conditional discharge for issuing a bad check as first offense. (3) Section 4177B of Title 21. First offenders; election in lieu of trial. (c) (1) Notwithstanding any provision of this section to the contrary, no person shall be admitted to probation before judgment if: a. The person is currently serving a sentence of incarceration, probation, parole or early release of any type imposed for another offense; b. The person is charged with any offense set forth in this title, and has previously been convicted of any violent felony; c. The person is charged with any offense set forth in this title, and has previously been convicted of any nonviolent felony within 10 years of the date of the commission of the alleged offense; d. The person is charged with any offense set forth in this title, and has previously been convicted of any misdemeanor offense within 5 years of the date of the commission of the alleged offense; e. The person is charged with any offense set forth in Title 4 or 7, and has been previously convicted of any offense set forth in Title 4 or 7 within 5 years of the date of the commission of the alleged offense; f. The person is currently charged with any offense set forth in § 709 of Title 21, and has been previously convicted of any offense set forth in Title 21 within 5 years of the date of the commission of the alleged offense; g. The person is currently charged with a violation of § 2702 of Title 14 and has been previously convicted of a violation of 2702 of Title 14 within 5 years of the date of the alleged offense; or h. The person is charged with a violation of a county or municipal code provision and has previously been convicted of a violation of another county or municipal code provision within 5 years of the date of the commission of the alleged offense. i. The person is charged with an offense involving a motor vehicle and holds a commercial driver license (CDL). (2) For the purposes of this subsection, the following shall also constitute a previous conviction: a. A conviction under the laws of another state, the United States, or any territory of the United States of any offense which is the same as, or equivalent to, any offense specified in paragraph (c)(1) of this section; or b. [Repealed.] c. Any adjudication, resolution, disposition or program set forth in § 4177B(e)(1) of Title 21. (d) This section shall not be available to any person who has previously been admitted to probation before judgment for any offense involving the same title within 5 years of the current offense. (e) Nothing in this section shall be construed to permit probation before judgment for a violation of a county or municipal code that would not be permitted for the corresponding state code offense. (f) Upon a violation of a term or condition of the court’s order of probation before judgment, the court may enter judgment and proceed with disposition of the person as if the person had not been placed on probation before judgment. (g) Upon fulfillment of the terms and conditions of probation before judgment, the court shall enter an order discharging the person from probation. The burden shall be upon the defendant to demonstrate that the terms and conditions of probation have been fulfilled. The discharge is the final disposition of the matter. Discharge of a person under this section shall be without judgment of conviction and is not a conviction for purposes of any disqualification or disability imposed by law because of conviction of a crime. (h) Notwithstanding any provision of this section to the contrary, the court shall not admit a defendant to probation before judgment nor otherwise apply any provision of this section unless the defendant first gives written consent to the court permitting any hearing or proceeding pursuant to this section to occur in the defendant’s absence if: (1) Timely notice of the hearing or proceeding is sent or delivered to the address provided by the defendant pursuant to subsection (a) of this section; and (2) The defendant fails to appear at said proceeding. In the event that a defendant fails to appear at any hearing or proceeding pursuant to this section, the court may proceed in the defendant’s absence if it first finds that timely notice of the hearing or proceeding was sent or delivered to the address provided by the defendant pursuant to subsection (a) of this section. Nothing in this subsection shall limit the power of the court to hold a hearing to determine whether a defendant is in violation of the terms of that defendant’s probation. (i) Notwithstanding the provisions of subsection (a) of this section to the contrary, in any case in which the Delaware Department of Justice does not intend to enter its appearance, the consent of the State shall not be required prior to placing a defendant on “probation before judgment.” In such cases, the defendant may be placed on probation before judgment only for charges arising from a single arrest. Notwithstanding the foregoing, except for the offenses under Title 21 to which this section applies, the Attorney General or other prosecuting authority may advise the court of aggravating circumstances in opposition to placing a defendant on “probation before judgment.”

Del. Code tit. 11, § 4219 Continuous Remote Alcohol Monitoring Program.

(a) There is hereby established for sentencing and probation purposes a Continuous Remote Alcohol Monitoring Program which shall use technology to monitor offenders for alcohol use. The program shall be administered by the Department of Correction which shall have the sole authority to determine which offenders are accepted into the program. (b) The Board of Parole or any Court of competent jurisdiction may request and recommend, as part of conditions of release or the sentence of any person convicted under § 4177(a) of Title 21 for a first offense where the first offender election is not available, or for a subsequent offense involving a blood alcohol content of .20 or higher, a period of continuous remote alcohol monitoring not to exceed 90 days for a first offense and 120 days for a second offense. (c) Any inmate incarcerated for violations of § 4177 of Title 21 and selected for participation in the program shall be released on Level IV status, subject to the conditions of the program, and those conditions imposed by the sentencing judge. The remainder of the participant’s sentence of incarceration shall be suspended upon completion of the program requirements. Participants failing to satisfactorily complete the program shall be returned to the Board of Parole or the sentencing authority for resentencing. (d) Any offender considered for participation must agree to adhere to the conditions established for participation before being accepted into the program. (e) The Department of Correction shall report annually on the use of the program, and its effectiveness as a supervision mechanism.

Del. Code tit. 11, § 4220 Modification, suspension or reduction of sentence for substantial assistance.

(a) The Attorney General may move the sentencing court to modify, reduce or suspend the sentence of any person who is convicted of any crime or offense specified in this Code, and who provides substantial assistance in the identification, arrest or prosecution of any other person for a crime or offense specified in this Code, in the laws of the United States, or any other state or territory of the United States. (b) Upon good cause shown, any motion made pursuant to subsection (a) of this section may be filed and heard in camera. (c) The provisions of § 4204(d) or § 4217 of this title, any court rule or any other provision of law to the contrary notwithstanding, a judge of the court that is imposing or that has imposed a sentence, upon hearing a motion filed pursuant to subsection (a) of this section, may modify, reduce or suspend that sentence, including any minimum or mandatory sentence, or a portion thereof, if the court finds that the person rendered such substantial assistance.

Del. Code tit. 11, § 4221 Modification, deferral, suspension or reduction of sentence for serious physical illness, injury or infirmity.

Notwithstanding any provision of law to the contrary, a court may modify, defer, suspend or reduce a minimum or mandatory sentence of 1 year or less, or a portion thereof, where the court finds by clear and convincing evidence, or by stipulation of the State, that the person to be sentenced suffers from a serious physical illness, injury or infirmity with continuing treatment needs which make incarceration inappropriate and that such person does not constitute a substantial risk to the community.
Source: DE Code (Official Site)URL: https://delcode.delaware.gov/title11/c042/index.htmlFetched: 6/28/2026
Del. Code tit. 11, ch. 42 — Classification of Offenses; Sentences | Delaware Code — Delaware | Corpus