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Zebroski v. State

Supreme Court of Delaware

January 25, 2018


          Submitted: January 17, 2018

         Court Below: Superior Court of the State of Delaware Cr. ID No. 9604017809 (N)

         Upon 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.

          Before STRINE, Chief Justice; VALIHURA and TRAYNOR, Justices.

          TRAYNOR, Justice

         Prior to our decision in Rauf v. State, [1] 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, [2] that Rauf is retroactive, his death sentence was vacated and he was resentenced to a mandatory term of life without parole.

         Zebroski 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.

          Aside 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.

         Rauf 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.



         On an afternoon in 1996, Zebroski was visiting a friend's apartment.[3] Two others were there, and the four of them "spent the day drinking, smoking marijuana, and ingesting PCP."[4] 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.

         Inside, 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.

         Zebroski was charged with two counts of first-degree murder-one count of intentional killing[5] and one count of felony murder.[6] 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 sentence.[7]


         After 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 death.

         Under 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."[8] 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."[9] The remainder of section 4209 sets forth detailed capital sentencing procedures, some of which, Rauf held, violate the Sixth Amendment.[10]

         In the 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.


         Rauf 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.[11]

         Zebroski 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.

         We 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.'"[12]

         That 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 ...

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