James M. F. SHORT, Defendant-Appellant,
The STATE of Delaware, Plaintiff-Appellee.
John M. Ryan, Wilmington, for James M. F. Short, defendant-appellant.
Clement C. Wood, Chief Deputy Atty. Gen., and Norman E. Veasey, Deputy Atty. Gen., for the State of Delaware, plaintiff-appellee.
SOUTHERLAND, Chief Justice, WOLCOTT, Justice, and MARVEL, Vice Chancellor, sitting.
MARVEL, Vice Chancellor.
[54 Del. 533] This is an appeal from a sentence imposed by the Superior Court. The facts are as follows. On May 5, 1961, defendant waived indictment and consented to the filing of ten criminal informations charging him with ten acts of sodomy. Seven of these acts were alleged to have been engaged in with one person, two with a second person, and a single act with a third person. The acts charged, which are made felonies by § 831 of Title 11 Del.C.,  are alleged to have taken place between December 3, 1960 and March 6, 1961.
At his arraignment, which was also held on May 5, defendant pleaded guilty to the charges made in the ten informations lodged against him and the case was referred for pre-sentence investigation. While the pre-sentence investigation was in progress, defendant voluntarily underwent treatment at the hands of a clinical psychologist with results encouraging to the psychologist. Upon the filing of a pre-sentence report on December 1, 1961, the following sentence was imposed on nine of the informations, namely, that defendant pay a fine of $50 on each charge and that in default of payment of any such fine that he be imprisoned for a perior of ten days. In addition, defendant was sentenced to pay the costs of the proceedings and on the first information to be imprisoned for a period of eighteen months, commencing on December 1, 1961 and ending on May 31, 1963. An identical prison sentence was meted out on each of eight of the other informations. However, all prison sentences were directed to run concurrently.
As to the tenth information the same fine was imposed but in lieu of imprisonment defendant was placed on probation for a period of three years, commencing on the expiration of his prison sentence. Finally, the sentencing judge directed that [54 Del. 534] defendant be given psychiatric treatment during his imprisonment and subsequently during his probation.
The maximum sentence which defendant might have received under his pleas of guilty would have been total fines in the amount of $10,000 and thirty years in prison.
In January 1962, counsel for defendant filed a motion under Superior Court Criminal Rule 35(b), Del.C.Ann. in which he sought a reduction of sentence on the following grounds: (1) that inasmuch as § 7705 of Title 11 Del.C. denies parole to a sodomist, defendant must serve his entire term of imprisonment; (2) that '* * * defendant is a first offender with no prior criminal record and has in fact an exemplary public record * * *'; (3) that the type of offense of which defendant is guilty though technically criminal is essentially a medical problem which in defendant's case was responding to treatment prior to his imprisonment,  and (4) that the facilities for psychiatric treatment at the New Castle County Correctional Institution are extremely limited.
The sentencing judge orally denied defendant's motion for a reduction of sentence on January 26, entering a written order to such effect nunc pro tunc on March 9 after defendant had appealed to this Court on January 29.
Defendant, having pleaded guilty to the charges against him, appeals solely on the ground that the sentence of the Superior Court is so excessive as to constitute error.
Paragraph (1)(b) of § 11 of Article 4 of the Constitution of Delaware, Del.C.Ann. provides in part:
'The Supreme Court shall have jurisdiction as follows: * * *
[54 Del. 535] '(1) (b) To receive appeals from the Superior Court in criminal causes, upon application of the accused in all cases in which the sentence shall be death, imprisonment exceeding one month, or fine exceeding One Hundred Dollars, and in such other cases as shall be provided by law; and to determine finally all matters of appeal on the judgments and proceedings of said Superior Court in criminal causes * * *.'
The right to a review in an appellate tribunal exists only when and to the extent provided in the constitution and laws of this state, Elbert v. Scott, 5 Boyce 1,90 A. 587, and Casey v. Southern ...