Submitted: November 7, 2018
Defendant's Motion for Correction of Sentence.
T. van Amerongen, Jr., Esquire, Deputy Attorney General,
Department of Justice, Wilmington, Delaware, Attorney for the
L. Washington, James T. Vaughn Correctional Center, Smyrna,
Delaware, pro se.
RICHARD R. COOCH, R.J.
4th day of December, 2018, upon consideration of
Defendant's Motion for Correction of Sentence, it appears
to the Court that:
1. On March 18, 1996, the New Castle County Grand Jury
indicted Kevin L. Washington ("Defendant") for
three counts of unlawful sexual intercourse first
degree and one count of unlawful sexual
penetration third degree. After the evidence was presented at
Defendant's trial, and prior to deliberations, this Court
instructed the jury on the lesser-included offense of
unlawful sexual contact second degree as to two of the three
unlawful sexual intercourse charges. On April 30, 1998, the jury
found Defendant guilty of two counts of unlawful sexual
intercourse first degree, one count of unlawful sexual
penetration third degree, and one count of unlawful sexual
contact second degree, a lesser-included offense of the third
indicted unlawful sexual intercourse first degree.
Defendant was sentenced to 75 years level V
incarceration. The Supreme Court of Delaware affirmed
Defendant's conviction on direct appeal on March 3,
2. Defendant previously filed three separate motions for
postconviction relief in this Court. Defendant also sought
federal intervention through habeas corpus
proceedings. All of Defendant's attempts over the
past two decades to avoid the remainder of his prison
sentence have failed. Defendant again comes before this Court
3. Defendant filed a pro se Motion for Correction of
Sentence pursuant to Superior Court Criminal Rule 35(a) on
November 5, 2018. In his Motion, Defendant argues that on
April 30, 1998, he was convicted of only one count of
unlawful sexual intercourse first degree, and two counts of
the lesser-included unlawful sexual contact second degree.
Defendant believes this Court ignored the jury verdict when
this Court sentenced him on September 18, 1998 to, inter
alia, two counts of unlawful sexual intercourse first
4. Defendant apparently misunderstands the procedural history
of this case. At trial, after a motion by defense counsel,
the Court instructed the jury on the lesser-included offense
of unlawful sexual contact second degree as to Counts I and
III only. The jury was instructed that it must
consider the lesser-included offenses if it determined the
State failed to meet its burden to prove beyond a reasonable
doubt Defendant committed the original charges in Count I and
III. The jury was free to find Defendant
guilty as originally charged if the jury believed, in their
collective wisdom, that the State met its burden of proof as
to each element of the original charge.
5. The jury determined that the State failed to satisfy its
burden to prove beyond a reasonable doubt that Defendant
committed Unlawful Sexual Intercourse First Degree as to
Count III, and instead found Defendant guilty of the
lesser-included offense of Unlawful Sexual Contact Second
Degree as to Count III. While the jury was permitted to
consider that same lesser-included offense for Count I, it
determined the State satisfied its burden to prove Defendant
was guilty as originally charged in the indictment with
respect to Counts I and II (Unlawful Sexual Intercourse First
6. The record is clear that the jury found Defendant found
guilty of two counts of Unlawful Sexual Intercourse First
Degree, one count of Unlawful Sexual Penetration Third
Degree, and one count of Unlawful Sexual Contact Third
Degree. Defendant was sentenced for the
same underlying offenses of which he was convicted.
Defendant's sentence was correct.
Defendant's Motion for ...