Revised Statute Will Address Complexity, Disparities, Serious Repeat Dealers

A bipartisan group of legislators joined the Delaware Department of Justice Thursday in introducing legislation to address some long-identified issues of complexity and conflict in Delaware’s criminal drug laws, as well as to make the laws more fair and increase penalties for repeatedly convicted drug dealers. If passed, the state’s criminal drug laws will be easier to apply, and potential disparate impacts that the current laws have on residents of the state’s urban areas will be eliminated.

Reducing Complicated Drug Code Factors

Delaware’s existing criminal drug laws impose penalties that are generated by a complicated calculus of five different weight classes, six different “aggravating factors,” and multiple types of “prior qualifying offenses.”

The proposed changes to the drug code will collapse the five weight classes into three, and eliminate several of the aggravating factors, creating a framework that is easier to apply and does not contain a number of internal inconsistencies that exist in the current law.

“Prosecutors and law enforcement officers have been saying for some time that a more straightforward, coherent criminal drug code was needed in order to ensure fair and proportional sentences,” said Delaware Attorney General Matt Denn. “We are grateful for the advice and participation of the law enforcement community in crafting these changes.”

The Delaware Police Chiefs’ Council backs the draft legislation, stating through its Executive Director Jeffrey Horvath “The Delaware Police Chiefs’ Council has reviewed the proposed revisions to the current drug code and is in support of the changes. We feel this is a positive step in simplifying the current drug code.”

Eliminating Disparities

The revised drug code will also eliminate potential disparities in the existing drug laws between city residents and those who live in suburban and rural areas. Currently, the penalties for drug crimes may be aggravated – and minimum mandatory sentences may be triggered – when those crimes occur within 1000 feet of a park or a place of worship. Because churches and parks are heavily concentrated in urban areas, particularly in the City of Wilmington, these aggravating factors can create disproportionate penalties for residents of those areas. The proposed legislation would eliminate proximity to parks and places of worship as aggravating factors.

“The drug laws, as currently written, effectively create a more serious offense of ‘committing a drug crime in the City of Wilmington,’” said Senate Majority Leader Margaret Rose Henry, a prime sponsor of the legislation. “This has a disproportionate impact on low-income and minority residents of the city. The passage of this law will eliminate that racial and economic disparity.”

Linwood Jackson, President of the Delaware State NAACP, said “The NAACP supports all efforts that result in smarter, results-based criminal justice policies that keep our communities safe. This effort is designed to achieve judicial equity in sentencing by ending racial disparities at all levels of the criminal justice system.”

Heightened Penalties for The Most Serious Repeat Drug Dealers

The proposed legislation also seeks to impose heightened criminal penalties on major drug dealers who re-offend after being previously convicted of major drug dealing offenses.

“Unlike other provisions in our criminal code, where there are heightened mandatory penalties for serious offenders who are convicted of the same offense over and over, our drug code has no such heightened penalties,” said Representative Larry Mitchell, the prime House sponsor of the bill. “Individuals who commit serious drug dealing offenses for the second, third, or tenth time after being convicted and sentenced for a previous serious dealing offense get the same mandatory sentence as they did for the first offense. Drug dealing remains a serious problem in our communities, and this bill will ensure that the most serious drug dealers who are convicted, serve time, and then go out and start dealing drugs all over again receive an appropriately heightened penalty.”

This new provision addresses a gap that was created by the passage of last year’s habitual offender statute. Under the old habitual offender law, a third major drug dealing offense resulted in a mandatory life sentence. However, all drug offenses were removed from the mandatory sentencing provisions of the habitual offender statute, so as a result there are no heightened mandatory sentences at all under the current code for repeat offenses of the criminal drug laws – only the existing two-year mandatory sentence that exists for the most serious drug dealing offenses.

Providing Uniformity In the Presentation of Evidence in Drug Cases

Finally, the legislation provides certainty for prosecutors in the application of a 2015 Delaware Superior Court opinion that approved of the use of “hypergeometric sampling” in making initial (“prima facie”) determinations in criminal cases as to whether a quantity of drugs seized in a criminal case is, presumptively, all of the same type as a portion that was sampled.

Of the legislation as a whole, which will be released for introduction Thursday, sponsor and House Minority Leader Danny Short said, “These changes will make our drug laws more coherent and streamlined. Once implemented, these prudent modifications will improve the application of criminal justice in Delaware.”

The Delaware State Fraternal Order of Police is also in support of the legislation.

Sponsorship of the two bills that make up the proposal will include Sen. Henry, Rep. Mitchell, Rep. Short, Senate Minority Whip Gregory Lavelle, Speaker of the House Peter Schwartzkopf, Sen. John Walsh, Sen. Bruce Ennis, Rep. Deborah Hudson, Rep. Earl Jaques and Rep. Helene Keeley.

Text of the two bills being introduced is attached.

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Other defendants face prison time for weapons, assault, burglary and child abuse charges

A 23-year-old man from Bear will spend 22 years in prison after being sentenced in New Castle County Superior Court for a shooting in Wilmington last summer. In July 2015, Shaquille Campbell shot a man in the leg, a short time after the two argued in the 100 block of North Van Buren Street in Wilmington. Campbell was convicted in March 2016 of Attempted Murder, Possession of a Deadly Weapon During the Commission of a Felony, Possession of a Firearm by a Person Prohibited, and Carrying a Concealed Deadly Weapon. Deputy Attorneys General Daniel McBride and Rebecca Song prosecuted the case, with Detective Ricardo Flores of Wilmington Police as the chief investigating officer.

Deputy Attorney General Jenna Milecki secured a prison sentence for Datwan Lum, 27, of Middletown. In August 2014, Lum forced his way into the basement window of a home in the 2200 block of Hillside Road in Wilmington, and stole an iPad, computers, and a briefcase. A few days later, Wilmington Police spotted him in the 400 block of East 3rd Street, and as Lum ran from them, he dropped a loaded .38 special revolver. Lum was sentenced to a total of nine years in prison following multiple trials for Carrying a Concealed Deadly Weapon, Resisting Arrest, Burglary Second Degree, two counts of Theft From a Senior, Criminal Mischief, Conspiracy Second Degree, and Receiving Stolen Property. The prison term also includes a Violation of Probation for a 2010 Robbery Second conviction.

Deputy Attorney General Phillip Casale secured a five-year prison sentence for Conway Hayman, 17, of Wilmington. In October 2015, he shot a man in the 100 block of North Franklin Street in Wilmington during a robbery attempt. Hayman pled guilty in May 2016 to Assault First Degree, Possession of a Firearm During the Commission of a Felony, Attempted Robbery Second Degree, and Conspiracy Second Degree.

Deputy Attorney General Julie Finocchiaro secured a prison sentence for James Jones, Jr., 33, of Claymont. In December 2015, Jones broke into two units in the Harbor House Apartments in Claymont, stealing money, jewelry, and an AR-15 rifle. In May, he pled guilty to two counts of Burglary Second Degree, Theft of a Firearm, Theft from a Senior, and Resisting Arrest. Jones was sentenced to three years in prison, followed by probation.

Deputy Attorney General Karin Volker secured a plea to Child Abuse Second Degree from John Holliday, 39, of Newark. In March 2016, Holliday hit his then 11-year-old son in the head with the handle of a knife while disciplining the boy by fighting with him. The child suffered cuts and bruises to the face. Holliday also threatened the child with the knife. Holliday faces up to two years in prison when sentenced by the court.

Deputy Attorney General Lindsay Taylor secured a guilty plea from Tyra Mills, 41, of Dover, in connection with a 2014 Kent County investigation which resulted in the arrest and prosecution of 20 people involved in the drug trade in Kent and New Castle Counties, mostly centered in the Capital Park neighborhood of South Dover. Mills pled guilty to four counts of Drug Dealing, and one count of Possession of Illegal Prescription Drugs. Mills will be sentenced in Kent County Superior Court in November.

Deputy Attorney General John Donahue secured a plea to Unlawful Sexual Contact in the First Degree from John King, 67, of Millsboro. His victim was a child under the age of 10. King, a Tier 2 sex offender will be sentenced by the court in October.

Anticompetitive Conduct Delayed Generic Competition, Causing Consumers And The State To Pay More For Provigil

A settlement between Delaware, 47 other states, the District of Columbia and the drug company Cephalon could result in up to $250,000 to be paid to Delaware consumers to resolve claims the company delayed generic versions of Provigil from entering the market for several years.

The settlement ends a multistate antitrust investigation into anticompetitive conduct by Cephalon and affiliated companies to protect the monopoly profits it earned from its drug Provigil, which is used to treat certain sleep disorders, including narcolepsy. The settlement, which involved the Delaware Department of Justice Consumer Fraud Unit, is still subject to federal court review and approval.

The states alleged that, as patent and regulatory barriers that prevented generic competition to Provigil neared expiration, Cephalon intentionally defrauded the Patent and Trademark Office to secure an additional patent, which a court subsequently deemed invalid and unenforceable. Before that court finding, Cephalon was able to delay generic competition for nearly six years by filing patent infringement lawsuits against all potential generic competitors. Cephalon settled those lawsuits in 2005 and early 2006 by paying the generic competitors to delay sale of their generic versions of Provigil until at least April 2012. Because of that delayed entry, consumers, states and others paid hundreds of millions more for Provigil than they would have had generic versions of the drug launched by early 2006 as expected.

This multistate settlement was facilitated by litigation brought against Cephalon by the Federal Trade Commission, and the FTC’s settlement of those claims in 2015 allowed for funds to be distributed for settlement of certain related cases and government investigations, such as those of the 48 states and the District of Columbia.

Delaware’s total recovery will include: (1) an estimated $163,959 to $252,068 for distribution to Delaware consumers for payments for Provigil through a claims process to be created; (2) $59,533 to compensate the State of Delaware for certain Provigil purchases made by the Delaware Division of Medicaid and Medical Assistance; and (3) $324,007 to the Delaware Consumer Protection Fund, which pays for Delaware’s work on antitrust matters and other consumer-oriented investigations and legal actions.

Attorney General Matt Denn commended Deputy Attorney General Mike Undorf and the Consumer Protection Unit for their work on the case.

Misleading charitable solicitations that were misrepresented as going to Delaware fire companies have ended as a result of an investigation and a Cease and Desist Agreement from the Delaware Department of Justice targeted at Firefighter Support Services, Inc., a Michigan organization, and almost $6,000 in contributions will be returned to the Delaware fire community.

The solicitations by Firefighter Support Services took the form of telemarketing calls where the callers would repeatedly use the terms “firefighter” or “firemen.” Under Delaware law, use of certain terms that refer to law enforcement personnel such as “firefighter” or “police” are prohibited unless the caller is actually a bona fide law enforcement officer or employee, or the caller has written permission from a Delaware law enforcement agency to use such terms in their fundraising campaigns. The calls had been brought to the attention of the Delaware Department of Justice by Delaware fire companies who said the calls had no connection to any fire companies in the state, and DOJ alerted the public to the calls in February (https://news.delaware.gov/2016/02/02/attorney-general-warns-delawareans-about-fraudulent-fundraising-calls-to-support-delaware-firefighters-foundation/)

To resolve the violations, the Consumer Protection Unit of DOJ entered into an agreement which sanctions Firefighter Support Services, Inc. for its violations of Delaware law through civil penalties and demands restitution of the near $6,000 in donations from Delawareans since 2011. These restitution amounts will be distributed to the Delaware Volunteer Firefighter’s Association, Inc., a local non-profit that counts all 60 Delaware fire companies as members and provides education, training, outreach and other services relevant to the Delaware firefighter community.

“It can never be stated enough how our fire companies protect our communities and it is the least we can do to aggressively pursue those who would trade on Delaware firefighters’ outstanding reputation for fraudulent donations,” Attorney General Matt Denn said. “I appreciate the fire companies that brought it to our attention and Deputy Attorney General Gillian Andrews and Special Investigator Alan Rachko for achieving the resolution in this case.”

Joseph Zeroles, President of the Delaware Volunteer Firefighters Association said, “It is sad when people take advantage of the great work done by the Delaware volunteer fire companies to pray upon unsuspecting citizens. We wish to thank everyone in the Attorney General’s Consumer Protection Unit for their tireless effort in bringing this to resolution.”

The terms of the Cease and Desist Agreement also provide that Firefighter Support Services, Inc. shall not further violate provisions of Delaware’s charitable solicitation laws. In connection with this enforcement action, Firefighter Support Services, Inc. completely ceased its charitable solicitations in Delaware as of February 2016.

If you are interested in donating to your local fire company, the Attorney General encourages you to visit your local firehouse to drop off your donation in person, or donate directly to the fire company another way. A list of all local fire companies in Delaware and their contact information can be found at the Office of the State Fire Marshal: http://statefiremarshal.delaware.gov/information/fire_companies.shtml.

Anyone who suspects they have received a suspicious solicitation, the Attorney General encourages donors to call the toll-free Consumer Hotline at 1-800-220-5424 or email the Consumer Protection Unit at consumer.protection@delaware.gov.

Department of Justice Consumer Protection Unit asks other potential victims to come forward

The Attorney General’s Consumer Protection Unit announced that a New Castle County-based contractor faces criminal charges for defrauding multiple Delaware homeowners.

Mario Mareno, 49, doing business as Tradesmen Services, was arrested on Friday, May 13 by the First State Fugitive Task Force on four outstanding warrants for Home Improvement Fraud from the Delaware State Police, the New Castle County Police, and the Middletown Police Department. The Consumer Protection Unit is aware of other homeowners who have contacted authorities regarding Mareno and believes that there are more victims who have not yet come forward.

Law enforcement believes Mareno typically solicits and corresponds with victims via Facebook, text messaging, or email, and gets the victims to make large up-front payments, allegedly to obtain required permits and purchase materials, and then never substantially completes the work. In some cases, victims say they have discovered that Mareno did not obtain permits or purchase materials as represented. Mareno allegedly gives victims excuses for why the work is not done, and repeatedly promises to refund up-front payments but never actually does so.

“Home improvement scams are one of the most common types of complaints made by consumers to our Consumer Fraud Hotline,” said Attorney General Matt Denn. “All Delawareans hiring a contractor for home improvement work need to be alert for scams, and help avoid them by doing homework before hiring a contractor. Contractors should always be bonded and maintain all required licenses for mechanical work. It’s also important for homeowners to follow up on references, talk to friends and neighbors about a contractor’s reputation, and never pay for the work in cash or up front.”

Additional alleged victims have been identified by the Consumer Protection Unit, and the office urges other consumers, who believe they may have been victimized by Mareno or Tradesmen Services, or have information to share with authorities, to contact Consumer Protection Unit Special Investigators Jose Ortiz (302-577-8421) or Alan Rachko (302-577-8309).

If consumers suspect they are a victim of home improvement fraud, they should contact the Attorney General’s Consumer Fraud Hotline at 1-800-220-5424.

In all cases, defendants are presumed innocent until and unless proven guilty.