Submitted: February 24, 2017
Motions for Modification of Sentence Regarding Restitution
State's Motion - DENIED Defendant's Motion - GRANTED
HONORABLE ANDREA L. ROCANELLI JUDGE.
Court hereby finds that the procedural posture of this matter
is as follows:
January 13, 2016, Defendant Tanika Lewis
("Defendant") entered a plea of Guilty to Burglary
Third Degree, Forgery Second Degree, and Theft Under $1500,
and agreed to pay restitution to certain identified victims
of her criminal conduct.
Order dated March 9, 2016, effective March 3, 2016, Defendant
was sentenced ("Sentencing Order"): (i) as to
Burglary Third Degree, restitution of $47.00 and 3 years at
Level V as an Habitual Offender pursuant to 11 Del.
C. § 4214(a); (ii) as to Forgery Second Degree,
restitution of $4, 987.15 and 2 years at Level V, suspended
for 2 years at Level IV/Crest, suspended after successful
completion for balance of time to be served at Level III/GPS;
and (iii) as to Theft Under $1500, restitution of $4, 686.00
("Theft Restitution") and 12 months at Level V,
suspended for 12 months Level III/GPS.
Court's order of Theft Restitution is currently at issue.
The order of Theft Restitution arises from Defendant's
Theft of a purse belonging to a member of the public
("Theft Victim") while Theft Victim was on the
premises of Delaware College Preparatory Academy.
Letter dated January 13, 2017, Philadelphia Insurance Company
("PIC") contacted the Court directly through
Maryland counsel. PIC claims to have insured Delaware College
Preparatory Academy and to have paid $4, 196.33 to Theft
Victim in its capacity as an insurer. PIC requests that the
Court modify the Sentencing Order such that a portion of
Theft Restitution will be made payable to PIC rather than to
Court forwarded PIC's letter to the State and Defendant.
Upon consideration of PIC's letter, the State and
Defendant both made requests for relief. The State requests
modification of the Sentencing Order as to Theft Restitution
such that the amount that PIC paid to Theft Victim is made
payable to PIC instead. Defendant requests modification of
the Sentencing Order to vacate Theft Restitution to Theft
THEREFORE, upon consideration of the pending requests by the
State and Defendant for modification of the Sentencing Order
as to Theft Restitution; the facts, arguments, and legal
authorities set forth by the parties; statutory and
decisional law; and the entire record in this case, the Court
hereby finds as follows:
PIC's request is not properly before the Court. PIC did
not file a motion to intervene in this criminal action and
did not otherwise properly request relief through Delaware
counsel. Instead, counsel who is not admitted to the Bar of
the Supreme Court of the State of Delaware sent an informal
letter directly to this judicial officer without sending
copies to the Prothonotary or notifying the State or
Defendant of the request. The Court will not consider a
request for relief that is made by a party who is not
properly before the Court.
Theft Victim was already paid for her loss over and above the
deductible, and it would be inappropriate for Theft Victim to
receive double compensation. Accordingly, the Court agrees
with both the State and Defendant that the Sentencing Order
as to Theft Restitution to Theft Victim must be modified.
Delaware Supreme Court has closely scrutinized restitution
awards by the Superior Court in criminal cases for compliance
with due process. The Court notes that Theft Restitution to
Theft Victim was properly awarded at the time of
Defendant's sentencing, when this Court had jurisdiction
to impose such an order and an award of restitution was
consistent with due process. Now, Defendant's counsel
vehemently objects to the transfer of Theft Restitution to
PIC by noting, among other things, that neither PIC nor its
claimed insured Delaware College Preparatory Academy is
listed as a victim on the plea agreement
documents. Defendant's counsel further objects on
the grounds that PIC's request is untimely and was not
presented at the time of sentencing.
Defendant is correct that PIC is not Defendant's
insurance company or an identified victim in Defendant's
plea agreement. Rather, PIC insured Delaware College
Preparatory Academy and paid Theft Victim's claim of $4,
196.33. Even under circumstances where an insurance company
is an identified victim of criminal conduct, statutory law
assigns low priority status for reimbursement of restitution
to the insurance company. The Delaware Supreme Court has noted
that the "restitution payor's own carrier is not a
proper beneficiary of restitution payments."
According to the Supreme Court, insurance carriers ...