In Delaware, a felony is any crime that may be punished by more than one year and up to life in prison. Offenses that carry a sentence of one year or less fall under the classification of misdemeanor.
Felony sentencing in Delaware involves several factors, including the offense class and category, the defendant's criminal history, and the recommended supervision level (probation or prison). Read on to learn how judges determine and impose felony sentences in Delaware.
Like many states, Delaware divides felony crimes into classes. Delaware uses seven classes—classes A to G—with class A felonies being the most serious and class G felonies the least. Within these seven classes, Delaware further divides felonies into two categories of violent and nonviolent. The law considers all class A felonies to be violent offenses, but the remaining classes are divided between the two categories. For instance, assault is a class B violent felony, and theft over $100,000 is a class B nonviolent felony.
The law specifies a maximum sentence for each felony class. Classes A and B also carry minimum sentences that must be imposed. Below are the maximum and minimum sentences (where applicable), plus examples of offenses under each class.
Class C felonies carry a maximum sentence of 15 years. Examples include first-degree vehicular homicide, fourth-degree rape, first-degree arson, and a 7th or subsequent DWI.
Class E felonies carry a maximum sentence of five years. Examples include prohibited possession of a firearm, identity theft, health care fraud, and certain computer offenses.
Class G felonies carry a maximum sentence of two years. Examples include resisting arrest with force or violence, second-degree child abuse, and aggravated harassment.
In addition to imprisonment, a sentence can include fines, surcharges, and restitution orders. (Delaware law still references the death penalty, but the state's highest court found it unconstitutional.)
In most states, an offender serves a felony sentence in state prison and a misdemeanor sentence in a local jail. Delaware, however, has a unified corrections system, which manages all offenders at all stages of the criminal justice process, from pretrial detention to post-prison supervision. While this article refers generally to prisons, these institutions are referred to as correctional institutions and centers in Delaware.
Many defendants won't receive the maximum sentence indicated in the law, which is typical in sentencing. Why is that? Delaware (like several other states) uses a system of guidelines to calculate a defendant's sentence, which is based on several factors:
The guidelines use the maximum penalty for an offense to set the upper limit for sentencing. Generally, though, the guidelines recommend a sentence that starts much lower than the maximum and increases when aggravating factors are involved—for instance, when a defendant has multiple prior convictions.
States that use guidelines do so to provide consistency and fairness in sentencing. So a first-time offender in one part of the state will receive a similar sentence to a similarly situated defendant in another part of the state. And a repeat offender who commits the same offense will receive a harsher sentence to reflect the offender's past crimes and lack of rehabilitation.
The law also provides guidance on whether a judge should order a prison or non-prison sentence. Delaware has five levels of supervision. Any sentence pronounced under Level 5 will be a prison sentence. Levels 1 to 4 are non-prison sentences, with Level 1 being the least restrictive in terms of supervision and Level 4 being the most restrictive. Non-prison time generally involves probation (supervised or unsupervised) or quasi-incarceration (such as house arrest).
Using the above factors, the guidelines set a presumptive sentence—the sentence that the judge must generally hand down unless the circumstances justify a different punishment. This presumptive sentence recommends both a set term of imprisonment (say 11 years) and disposition to either prison or probation. Most often, the judge will use the recommended sentence. If the sentence falls outside the recommended range or disposition, the judge must provide a rationale (see below for "Exceptional Sentences").
Here's an example of how the guidelines break down the recommended sentences for a class C violent felony with a maximum 15-year prison term.
As you can see, the actual sentence to be imposed will depend on the circumstances of the offense and the defendant's remorse (or lack thereof), prior convictions, and custody status. A defendant could get less than two years behind bars or up to ten years.
You can find the presumptive guidelines' sentence for other felonies in the most recent benchbook put out by the Delaware Sentencing Accountability Commission.
When substantial and compelling reasons exist, a judge may break from the recommended sentence and impose an exceptional sentence above or below it. Here are some examples of exceptional sentencing factors.
Aggravating and mitigating factors. Aggravating factors may justify going above the recommended sentence. An example would be a defendant who commits a crime against a vulnerable victim. On the flip side, a judge might impose a sentence below the recommended time or impose probation rather than prison if mitigating factors were involved, such as a defendant being a first-time offender or induced by others to commit the crime.
Statutory aggravation. Certain crimes carry minimum sentences that must be imposed. For instance, a judge must impose a mandatory prison sentence of at least two years for a person convicted of first-degree vehicular homicide.
Habitual offenders. The law imposes harsh penalties for persons deemed habitual criminals—those who are being sentenced for a third or subsequent felony. The penalty varies depending on the number of priors and whether the current and prior felonies were considered violent or nonviolent. An offender could face a minimum sentence that is one-half of or equal to the statutory maximum for the offense. The maximum sentence can increase to life imprisonment. (Del. Code tit. 11, §§ 4214, 4215.)
As mentioned above, Delaware has five supervision levels that determine whether the judge should send the defendant to prison or allow probation.
Probation applies when an offender receives a sentence indicating a supervision level of 1 to 4. Probation suspends the prison sentence and allows a person to serve the sentence in the community while being supervised. The suspended prison sentence looms over the person's head as an incentive to comply with the conditions of probation. Probation conditions may include remaining law-abiding, attending treatment, reporting to a probation officer, maintaining employment, or performing community service. Violating these terms allows the judge to revoke probation and send the offender to prison to serve the suspended sentence.
Probation terms are capped at 24 months for violent felonies, 18 months for Title 16 felonies (drug offenses), and 12 months for all other felonies. A judge can go beyond these time limits in limited circumstances. (Del. Code tit. 11, § 4333 (2021).)
Most offenders sent to prison will serve 75 to 100% of their sentence behind bars. Delaware no longer uses a parole release system, under which an inmate's release depends on parole board approval. In 1990, the state moved to a truth-in-sentencing system, which makes the amount of time an inmate will serve more predictable. Under the prior parole system, offenders might serve only 30 to 50% of their sentence. Now, the minimum is generally 75%, which can be achieved by earning "good time" credits for good behavior in prison.
If the inmate earns good time credits and is released before the entire sentence has been served, the remaining time will be spent under conditional release supervision. For most sentences, the court will automatically order a six-month period of post-prison supervision to facilitate the offender's re-entry into the community. (Del. Code, tit. 11, §§ 4381, 4204(k) (2021).)
Delaware law (like most states) provides a time limit for filing a criminal case—called a statute of limitations. Several crimes—murder, class A felonies, and certain child sex offenses—have no time limits and can be charged at any time after the crime was committed. But for other felonies, the prosecutor must generally file charges within five to ten years of the crime being committed or reported. (Del. Code tit. 11, § 205 (2021).)
A felony conviction carries harsh penalties that go beyond the current sentence. If you're convicted later of another felony, the court can consider your prior conviction and impose a harsher sentence in the new case. Being a convicted felon can hurt you when looking for a job or applying for housing. Convicted felons lose the right to vote, carry firearms, and obtain certain professional licenses.
If you're charged with a felony, talk to a local criminal defense attorney who can determine whether you have any grounds for dismissal, explore plea options, or represent you at trial. For past convictions, you may want to speak with an attorney about expungement options to clear your public record.