CRAIG A. ZEBROSKI, Appellant,
STATE OF DELAWARE, Appellee.
Submitted: January 17, 2018
Below: Superior Court of the State of Delaware Cr. ID No.
appeal from the Superior Court. AFFIRMED.
Stamatios Stamoulis, Stamoulis & Weinblatt LLC,
Wilmington, Delaware; Edson A. Bostic and Tiffani D. Hurst,
Office of the Federal Public Defender, Wilmington, Delaware,
Attorneys for Appellant.
Elizabeth R. McFarlan, Department of Justice, Wilmington,
Delaware, Attorney for Appellee.
STRINE, Chief Justice; VALIHURA and TRAYNOR, Justices.
to our decision in Rauf v. State,  which held that
Delaware's capital sentencing scheme violates the Sixth
Amendment to the United States Constitution, Craig Zebroski
was convicted of two counts of first-degree murder and
sentenced to death. After we held, in Powell v.
State,  that Rauf is retroactive, his
death sentence was vacated and he was resentenced to a
mandatory term of life without parole.
contends that this sentence runs afoul of both Rauf
and the United States Constitution. He reads our decision in
Rauf as having invalidated not just Delaware's
capital sentencing scheme, but all of 11 Del. C.
§ 4209-the statute that specifies the penalties for
first-degree murder, which is where the capital sentencing
procedures are codified. Section 4209 provides that
first-degree murder shall be punished either by death or by
life without parole, but because, under Zebroski's
reading, Rauf invalidated the entirety of section
4209, he believes the statute's life-without-parole
alternative cannot be enforced and he must instead be
sentenced to the residual punishment prescribed by statute
for all other class A felonies: a term of years ranging from
fifteen years to life. And he contends if Rauf did
not strike down all of section 4209, it should have, because
the life-without-parole alternative is not severable from the
rest of the statute.
from his statutory challenge, Zebroski contends that imposing
a mandatory sentence of life without parole on him violates
both his Eighth Amendment and due process rights.
did not, as Zebroski believes, invalidate the entirety
of section 4209, and, as we said in Powell, the
statute's life-without-parole alternative is the correct
sentence to impose on a defendant whose death sentence is
vacated. And we find no constitutional fault in imposing that
sentence on him.
afternoon in 1996, Zebroski was visiting a friend's
apartment. Two others were there, and the four of
them "spent the day drinking, smoking marijuana, and
ingesting PCP." At some point during the afternoon,
Zebroski proposed to one of them, Michael Sarro, that the two
of them rob a nearby gas station nearby. Shortly before
midnight, they headed out. After surveilling the station to
ensure it was empty of customers, Zebroski took Sarro's
semi-automatic handgun, and they entered the station.
they found a lone attendant. Zebroski pointed the gun at him
and demanded he open the cash register, but the attendant did
not respond. Both Sarro and Zebroski-who was standing only
three or four feet from the attendant, still pointing the
gun-threatened him, but he did not open the register. After
Sarro tried and failed to open it himself, Zebroski shot the
attendant in the forehead, killing him.
was charged with two counts of first-degree murder-one count
of intentional killing and one count of felony
murder. He was found guilty of both at trial.
Under the then-governing capital sentencing scheme, the jury
found, by a vote of nine to three, that the aggravating
circumstances outweighed the mitigating circumstances and
recommended a sentence of death. The Superior Court agreed.
On direct appeal, we affirmed both the conviction and the
we decided Rauf and Powell, the Superior Court
vacated Zebroski's death sentence. But he and the State
disagreed about what sentence he should receive in lieu of
11 Del. C. § 4205, punishment for a class A
felony in Delaware shall be "not less than 15 years up
to life imprisonment . . . except for conviction of first
degree murder in which event § 4209 of this title shall
apply." Section 4209(a), in turn, provides that
"[a]ny person who is convicted of first-degree murder .
. . shall be punished by death or by imprisonment for the
remainder of the person's natural life without benefit of
probation or parole or any other
reduction." The remainder of section 4209 sets forth
detailed capital sentencing procedures, some of which,
Rauf held, violate the Sixth
State's view, determining which sentence Zebroski should
receive is straightforward. Section 4209 provides that
first-degree murder "shall be punished by death or by
imprisonment for the remainder of the person's natural
life without . . . parole, " so if he cannot be
sentenced to death, then he must be sentenced to life without
parole. But Zebroski contends that when Rauf struck
down the death penalty, Rauf invalidated all of
section 4209-not just the capital sentencing scheme-and so,
with section 4209 unenforceable, he must be sentenced instead
to fifteen years to life, the punishment specified in section
4205 for class A felonies.
was decided on the basis of five certified questions.
The last of those questions asked whether the statute was
severable, were we to conclude that the statute has
constitutional infirmities. After concluding that certain
steps in the capital sentencing process ran afoul of the
Sixth Amendment, we turned to the question of severability
and answered that question in the negative:
[Question Five] If any procedure in 11 Del. C.
§ 4209's capital sentencing scheme does not comport
with federal constitutional standards, can the provision for
such be severed from the remainder of 11 Del. C.
§ 4209, and the Court proceed with instructions to the
jury that comport with federal constitutional standards?
No. Because the respective roles of the judge and jury are so
complicated under § 4209, we are unable to discern a
method by which to parse the statute so as to preserve it.
Because we see no way to sever § 4209, the decision
whether to reinstate the death penalty-if our ruling
ultimately becomes final-and under what procedures, should be
left to the General Assembly.
reads our answer to hold that all of section 4209, including
the alternative punishment of life without parole that the
General Assembly incorporated into the statute for cases
where the death penalty is not imposed, is invalid. That, he
says, means that a defendant whose death sentence is vacated
must be resentenced under section 4205, which would act as a
backstop for the now-unenforceable section 4209.
spoke to this issue in Powell, which asked us to
decide whether Raufs invalidation of the death
penalty had retroactive effect. After concluding that it did,
we went on to explain what that would mean for Powell's
sentence: "Powell's death sentence must be vacated
and he must be sentenced to 'imprisonment for the
remainder of his natural life without benefit of probation or
parole or any other reduction.'"
should dispose of Zebroski's challenge to the continuing
vitality of section 4209. But based on the way that we
answered that last certified question in Rauf,
Zebroski maintains that we intended to invalidate the
entirety of section 4209, which would mean ...