Ferry v. State, 39, 2017

Background

On Jan 6, 2016, a New Castle County home was burglarized; a Wii and about $15,000 in jewelry were stolen. Pawn records and recovered items linked Ferry and co-defendant Michael Riberio to the thefts. Riberio pleaded guilty to felony theft and agreed to testify against Ferry.
The State charged Ferry with burglary, conspiracy, criminal mischief, and felony theft. At trial Ferry admitted driving Riberio to pawnshops and selling some jewelry but denied participating in the burglary itself.
A jury acquitted Ferry of burglary, conspiracy, and criminal mischief, but convicted him of felony theft.
At sentencing the State argued Ferry was the “mastermind” of the burglary and introduced Ferry’s criminal history; the prosecutor also referenced arrests that were pending post-trial. Ferry objected that these references violated due process by relying on acquitted conduct, unproven crimes, and pending arrests.
The sentencing judge stated she would not consider charges for which Ferry was acquitted nor post-trial arrests pending charges, but did consider other aggravating factors (repetitive criminal conduct, substance addiction, lack of remorse/amenability) and imposed the statutory maximum sentence (two years at Level V suspended, additional suspensions, and restitution).
Ferry appealed, contending the State’s sentencing arguments and evidence violated due process. The Delaware Supreme Court affirmed, finding the judge did not rely on the allegedly improper material and otherwise based the sentence on permissible factors.

Issues

Issue	Ferry's Argument	State/Court's Argument	Held
Whether the State’s sentencing presentation about the burglary (for which Ferry was acquitted) violated due process	Argued State asked court to ignore jury acquittal and sentence him for the burglary	Evidence was relevant to the felony theft conviction and sentencing courts may consider investigatory information about suspected conduct; judge expressly said she would not consider acquitted charges	Court held no due process violation—evidence related to the convicted theft and judge did not rely on acquitted charges
Whether sentencing may rely on prior arrests/uncharged crimes	Argued prior arrests/uncharged conduct are unproven and should not enhance sentence	Mayes permits reliance on unproven crimes if information has minimal indicia of reliability and defendant can rebut	Court held such information is permissible when minimally reliable and rebuttable; here records supplied and Ferry had opportunity to respond
Whether arrests pending charges after trial may be considered at sentencing	Argued unproven post-trial arrests should not enhance punishment	Judge stated she would not consider any current criminal matters; absent record evidence to the contrary, appellate court must presume the judge followed that statement	Court held judge did not rely on post-trial arrests and thus no error
Whether the sentence was an abuse of discretion or improper because it exceeded guidelines	Argued sentence harsher than co-defendant and exceeded guidelines recommending probation	Sentence was within statutory maximum; judge relied on recognized aggravating factors (repetitive conduct, need for treatment, lack of remorse)	Court held sentence was within statutory limits, premised on permissible factors, and not an abuse of discretion

Key Cases Cited

Fink v. State, 817 A.2d 781 (Del. 2003) (standard for appellate review of sentencing for abuse of discretion)
Mayes v. State, 604 A.2d 839 (Del. 1992) (sentencing courts may consider unproven crimes if information has minimal indicia of reliability and defendant can rebut)
Siple v. State, 701 A.2d 79 (Del. 1997) (prior convictions may be used to show "repetitive criminal conduct" for sentencing)
Williams v. Oklahoma, 358 U.S. 576 (1959) (supporting principle that sentencing may consider conduct beyond the conviction)
United States v. Jones, 696 F.2d 479 (7th Cir. 1982) (authority recognizing consideration of unproven conduct at sentencing)
United States v. Doyle, 348 F.2d 715 (2d Cir. 1965) (addressing presumption of innocence and consideration of unproved activity at sentencing)