SUPER|OR COURT
oF THE

STATE OF DELAWARE

VlleN L. MEl)lNlLLA LEoNARD L. WlLLlAl\/ls JusTlcE CENTER
JchE 500 NoRTH KlNG STREET, sulTE 10400

WlLMlNGToN, DE 19801-3733

TELEPHONE (302) 255-0626

August 3, 2017

Brian J. Chapman, Esq. Daniel McBride, Esq.
LaW Office of Brian J. Chaprnan Department of Justice
300 Creek View Road, Suite 103 Carvel State Building
Newark, DE l97ll 820 North French Street

Wilmington, DE 19801

Re: State v. Jakevis Elh'ngmn
Case ID N0. .' 1 701 005 777

Dear Counsel:

This is the Court’s decision on Jakevis Ellington (“Defendant”)’s Motion to
Transfer the Case to Farnily Court (“Motion”), filed on April 26, 2017.l For the
reasons Stated beloW, Defendant’s Motion is GRANTED.

Defendant Was fourteen years old When he Was charged by indictment on
April l7, 2017. 2 The charges are: Murder First Degree, Robbery First Degree, two
counts of Possession of a Firearrn During the Commission of a Felony (“PFDCF”),
and Conspiracy Second Degree. The allegations stern from alleged conduct that
occurred on January 9, 2017. Defendant Was arrested on January 10, 2017, and has
been detained at the NeW Castle County Detention Center on these charges since
that date.

 

l State v. Ellington, Crim. I.D. No. 1701005777, D.I. #4 (Del. Super. Apr. 26, 2017) [hereinafter
Motion].

2 Defendant’s date of birth is June 27, 2002. Motion at 11 3.

F actual and Procedural Background

At the reverse amenability hearing on July 6, 2017, Detective Mackenzie
Kirlin testified on behalf of the State and stated that, on January 9, 2017, police
responded to a homicide and robbery scene at a corner store located at 101 North
Clayton Street in Wilmington, Delaware. Police found the store clerk dead from an
apparent gunshot wound. Change was strewn about the store floor and countertop,
suggestive of a robbery.

On January lO, 2017, Defendant’s co-defendant, Devonte Dorsett (“Dorsett”),
was arrested in relation to the above incident At the time of his arrest, he was
carrying a firearm that was later linked with ballistics evidence recovered at the
crime scene.

Dorsett was interviewed at the Wilmington Police Department and described
his version of the events on January 9, 2017. He told police that, on that date, he
was present at his friends’ residence located at 204 North Clayton Street. Defendant
was also at the residence, visiting another person who lived at this address. Dorsett
stated that it was Defendant’s idea to rob the corner store. Dorsett responded that he
wanted to rob a nearby “7-1 l” store. Nevertheless, the two traveled together to rob
the corner store on Clayton Street.

Dorsett further admitted to possessing the gun and explained that Defendant
did not carry the firearm at any time during the robbery. As the two entered the
store, Dorsett stated that he displayed the firearm and demanded that the clerk open
the cash register. Dorsett then told Defendant to pillage the cash register for money.

As Defendant retrieved the money from the cash register, Dorsett and the clerk
began to “tussle” with one another. Defendant jumped the countertop to leave and
dropped change in the process. Dorsett yelled at him to pick up the money.
Defendant refused and fled the store. As Defendant fled, Dorsett claims he
accidentally discharged his gun, striking the clerk. He ran from the store and stated
that he only found out online the next day that the clerk had died from the gunshot

wound.

After Dorsett’s interview, he identified Defendant from a photo. Defendant
was arrested that same day and interviewed at the Wilmington Police Department.
Defendant described a somewhat different version of the robbery.

Defendant stated that he was at the residence on Clayton Street when Dorsett

2

grabbed him and took him to the basement of the residence Dorsett was high on
drugs and alcohol.3 He showed Defendant the gun and told him that they were going
to rob the corner store. Dorsett told Defendant that he would shoot him if he did not
agree to assist in the robbery. Defendant complied.

According to Defendant’s version, they entered the store and Dorsett drew his
gun. Pointing the gun at Defendant, Dorsett told him to grab the money from the
cash register The “tussle” occurred when Dorsett blocked the doorway and
prevented the clerk from escaping the store. Defendant explained that he left the
store after refusing to pick up the change on the ground. He heard a shot while
outside the store. He fled the scene.

After fleeing the store, he returned to the Clayton Street residence. There, he
encountered Dorsett again. Defendant impressed upon someone at the residence to
tell Dorsett to leave the residence One of the residents instructed Dorsett to leave
and he did.

Defendant moved to transfer his case to Family Court on April 26, 2017. A
reverse amenability hearing was held on July 6, 2017. At the hearing, the State
called two witnesses: Det. Kirlin and Jennifer Skinner, Master Family Service
Specialist for the New Castle County Detention Center.

Additionally, the parties stipulated to the introduction of three reports: one
from Robin Belcher-Timme, Psy.D.; a Second report from Taunya Batista, M.A.;
and a third from Ms. Skinner on behalf of the Department of Services for Children,
Youth and Their Families, Division of Youth Rehabilitative Services (“YRS”).
After considering the parties’ submissions, arguments, and the testimony during the
reverse amenability hearing, this is the Court’s decision on Defendant’s Motion.

Standam' of Review
The reverse amenability process is meant to identify those juveniles charged

as adults who are amenable to the rehabilitative processes of the Family Court.4 If
the juvenile files a motion to transfer the adult charges, this Court must hold a reverse

 

3 Dorsett also admitted during his interview that he was under the influence of alcohol and drugs
on January 9, 2017.

4 See generally 10 Del. C. §§ 1010-11 (2013 & Supp. 2016). See Hughes v. State, 653 A.2d 241,
249 (Del. 1994) (quoting Marine v. State, 624 A.2d 1181, 1184 (Del. 1993); Marine v. State, 607
A.2d 1185, 1209 (Del. 1992)).

amenability hearing and weigh the four factors set forth in 10 Del. C. § 101 1(b).5

Under § 1011(b), the Court may consider evidence of: (l) “[t]he nature of the
present offense and the extent and nature of the defendant’s prior record, if any;” (2)
“[t]he nature of past treatment and rehabilitative efforts and the nature of the
defendant’s response thereto, if any;” (3) “[w]hether the interests of society and the
defendant would be best served by trial in the Family Court or in the Superior Court;”
and (4) any “other factors which, in the judgment of the Court are deemed relevant.”6

Before the Court weighs these factors, however, “the Court must preliminarily
determine whether the State has made out a prima facie case against the juvenile,
meaning whether there is a fair likelihood that [the defendant] will be convicted of
the crimes charged.”7 There is a fair likelihood that the defendant will be convicted
if, after reviewing the totality of the evidence presented, it appears that, if the defense
does not sufficiently rebut the State’s evidence, “the likelihood of a conviction is
real. . . .”8 Furthermore, “[a] real probability must exist that a reasonable jury could
convict on the totality of the evidence assuming that the evidence adduced at the
reverse amenability hearing stands unrebutted by the defendant at trial.”9

Discussion

As a preliminary comment, it should be noted that the State’s argument
against transfer included a contention that a shorter sentence in the juvenile justice
system is simply “not enough” of a sanction for Defendant’s alleged conduct. The
General Assembly sets the statutory ranges for criminal offenses, including those for
juvenile offenders Abstract arguments about the appropriateness of a sentence miss
the mark. The Court will not consider this argument lnstead, the Court focuses
solely on the factors under § 101 1(b).

Further, it is important to note what distinguishes this Motion from other
motions to transfer regularly addressed by this Court. Defendant is charged with

 

5 See, e.g., State v. Harper, 2014 WL 1303012, at *5-7 (Del. Super. Mar. 31, 2014).
6 § 1011(b).

7 Harper, 2014 WL 1303012, at *5 (citing Marine, 624 A.2d at 1185).

8 State v. Mayhall, 659 A.2d 790, 792 (Del. Super. 1995).

9 Id.

two counts of PFDCF. According to ll Del. C. § 1447A(f): “Every person charged
[with PFDCF] over the age of 15 years shall be tried as an adult, notwithstanding
any contrary provisions or statutes governing the Family Court or any other state
law.”lo Therefore, as a threshold matter, given Defendant’s age of 14 at the time of
the alleged offenses, the customary jurisdictional restrictions involving firearms
charges are absent in this Motion. As such, the parties agree that the Court has
discretion, under § 101 l(b), to transfer all of the charged offenses against Defendant
to Family Court.ll

I. Likelihood of Conviction

The Court finds that there is a fair likelihood of Defendant’s conviction at
trial. ln either version of the robbery, Defendant engaged in acts that, if proved at
trial, would support a conviction for the charged offenses. Defendant’S version of
the robbery differs from Dorsett’s; nevertheless, were the jury to hear Dorsett’s
version of the robbery, the jury could reasonably accept his version of the events and
discount Defendant’s version. ln such a case, were Defendant unsuccessful in
rebutting the State’s case, there would exist a “real probability” of conviction.

Defendant argued that the Court should consider the affirmative defense of
duress in this analysis. The State argued that this defense was immaterial to its
burden to prove a prima facie case against Defendant. Even assuming, arguendo,
that evidence of duress is raised at trial, this Court finds that there remains a fair
likelihood that Defendant will be convicted of the charged offenses.12 Though

 

10 ii Del. C. § i447A(i) (2015 & supp. 2016) (emphasis added).

11 See generally 10 Del. C. § 541 (2013 & Supp. 2016) (“The Superior Court shall have such
jurisdiction as the Constitution and laws of this State confer upon it.”); § 922 (describing Family
Court’s exclusive and concurrent original criminal jurisdiction); § 1010 (describing procedures
applicable to: “proceeding against child as an adult; amenability proceeding; referral to another
court”).

12 Originally, this threshold analysis-the requirement that the State establish a prima facie case
against the defendant at the reverse amenability hearing_derived from what is today the first
prong ofthe § 1011(b): “nature ofthe present offense.” Marine v. State, 607 A.2d 1185, 1211-12
(Del. 1992). This showing was analogized to a “proof positive” hearing. Id. “In each situation, a
judicial examination of the evidentiary justification for the charging decision is required.” Ia'. at
1212 (citing In re Steigler, 250 A.2d 379, 383 (Del. 1969)).

Though the statute has been amended on several occasions over the past 25 years, this
requirement has endured. However, because this threshold analysis looks to the charging decision
and its independent evidentiary basis, the viability of an anticipated affirmative defense, such as
duress, is of questionable import

Defendant reportedly participated in the offenses to a lesser extent than his co-
defendant, at this point, there remains “[a] real probability . . . that a reasonable jury
could convict [Defendant] on the totality of the evidence assuming that the evidence
adduced at the reverse amenability hearing stands unrebutted” at trial.13

Thus, the State has met its burden of demonstrating a prima facie case against
Defendant with a fair likelihood of conviction at trial.

II. Nature of Present Offense and Defendant’s Prior Record

The Court now turns to an analysis of the four statutory factors outlined in
§ 1011(b). Preliminarily, the State concedes that three of the four factors to be
considered weigh in favor of transfer. The State, however, argues that the nature of
the present offense and society’s interest suggest that the case should remain in
Superior Court.

A. Nature of Present Offense

The first § 1011(b) factor is two-pronged.14 The first prong of the first factor
inquiries into the nature of the present offense. ln this case, the severity of the
charged offenses is patent. However, the charges distort Defendant’s role in the
underlying offenses. While Defendant actively assisted Dorsett in pillaging the cash
register, Defendant was commanded to do so by his armed co-defendant, presumably
the same person who threatened to shoot him if he did not help him commit the
robbery. Further, Dorsett is several years older than Defendant. In other contexts,
the United States Supreme Court has recognized the “mitigating qualities of youth,”
which includes a judicial and scientific recognition of the juvenile’s proclivity to act
impulsively and irresponsibly due to innumerable intrinsic and extrinsic factors.15

 

13 Mayhall, 659 A.2d at 792.
14 See § 101 i(b)(i).

15 Miller v. Alabama, 132 S.Ct. 2455, 2467 (2012) (quoting Johnson v. Texas, 509 U.s. 350, 367
(1993)). Roper v. Simmons and its progeny reflect the greater attention that is now placed on the
peculiarities inherent in juvenile conduct. See Roper v. Simmons, 543 U.S. 551 (2005). See also
Monigomery v. Louisiana, 136 S.Ct. 718 (2016); Miller, 132 S.Ct. 2455; Graham v. Floria'a, 560
U.S. 48 (2010). This Eight Amendment jurisprudence recognizes that juveniles possess a “lack of
maturity and . . . underdeveloped sense of responsibility” that leads to reckless, impulsive, and
heedless risk-taking. Roper, 543 U.S. at 569 (quoting Johnson, 509 U.S. at 367). They “are more
vulnerable . . . to negative influences and outside pressures,” including from their family and peers.
Ia’. (citing Ea'dings v. Oklahoma, 455 U.S. 104, 115 (1982)). Juveniles have limited “control . . .

'6

This Court considers Defendant’s age and the nature and extent of his
involvement in the “nature of the present offense” prong. Despite Defendant’s
potentially coerced involvement in the robbery, the Court finds that this prong of the
first factor weighs against transfer.

B. Defendant’s Prior Record
Defendant has a minimal juvenile record.

To wit, the State ’s witness, Ms. Skinner, recommends that Defendant be found
amenable to the rehabilitative processes of the Family Court.16 Her report concludes
with the following recommendation, on behalf of YRS: “Given [Defendant] has no
prior adjudications or service history; and the fact that [the] Superior Court does not
have exclusive jurisdiction over any of the charges based upon his age, []YRS
recommends [Defendant] be found amenable and return to [the] Family Court.”17

The Court finds that the second prong of this factor weighs in favor of
transferring Defendant’s case to Family Court.

III. Nature of Past Treatment and Defendant’s Response

Defendant has a minimal past treatment history.

Ms. Skinner testified that the Division of Family Services (“DFS”) did receive
numerous calls regarding his mother’s alleged neglect of Defendant and his siblings

when Defendant was younger. The first six times DFS was called, the complaint
was closed as: “unsubstantiated with concern.” At some point, the situation

 

over their own environment” and lack the ability to extricate themselves from horrific, crime-
producing settings. Id. (citing Laurence Steinberg & Elizabeth S. Scott, Less Guilty by Reason of
Aa'olescence.' Developmental Immaiariiy, Diminishea' Responsibilily, and the Juvenile Death
Penalty, 58 AM. PSYCHOLOGIST 1009, 1014 (2003)). And because a child’s character is not as
“well formed” as an adult’s, his traits are “less fixed” and his actions are less likely to be “evidence
of irretrievabl[e] deprav[ity].” Ia’. at 570 (citing ERIK H. ERIKSON, IDENTITY: YOUTH AND CRISIS
(1968)).

16 Report of Jennifer Skinner, Master Family Service Specialist, New Castle County Detention
Center at 7 (submitted July 6, 2017).

17 Ia'.

reportedly “stabilized.”18

Dr. Robin Belcher-Timme’s report corroborates the dysfunction of
Defendant’s upbringing.19 Further, Dr. Belcher-Timme’s report comprehensively
chronicles: Defendant’s educational history, including his status as an lndividualized
Education Program student since at least fifth grade; his frequent use of illicit
substances at an early age; his psychiatric history, which contains undiagnosed
references to Attention-Deficit Hyperactivity Disorder and Bipolar Disorder; and his
legal history.

Dr. Belcher-Timme conducted a comprehensive clinical and risk assessment
of Defendant. Paraphrasing the results of Dr. Belcher-Timme’s findings, he found
Defendant to be a “young man who has experienced a great deal of turmoil in his 15
years.”20 Defendant demonstrates “symptoms associated with trauma-related
disorders . . .”21 He is categorized as a “moderate risk” for future violent conduct;
however, “his risk for future violence can be substantially reduced” with a targeted
treatment plan.22 He has “never had any efforts at rehabilitation through the Family
Court or [YRS].”23 Dr. Belcher-Timme posits that Defendant has significant
treatment needs; if treated, Defendant is likely to respond positively, augmenting
Defendant’s traj ectory for the better.24 Dr. Belcher-Timme opines that Defendant is
“amenable to treatment and rehabilitation options available under the . . . Family
Court and [YRS].”25 No witnesses challenged Dr. Belcher-Timme’s report.

lf Defendant is convicted of the charged offenses in Family Court, he faces
imprisonment and may benefit from approximately four years of treatment under the

 

18 See id. at 2-6 (describing DFS involvement).

19 See generally Robin Belcher-Timme, Psy.D., Confia'ential Report of Psychological Evaluation
(July 3, 2017).

20 ld_ at 13.
21 Id.
22 Id.
23 1a at i4.
24 Id.

25 Ia’.

Family Court and YRS.26 The testimony and reports submitted at the reverse
amenability hearing support Defendant’s minimal past treatment history.27 These
same reports suggest that Defendant is amenable to transfer and is likely to positively
engage in future treatment As such, the Court finds that this factor weighs in favor
of transfer to the Family Court.

IV. Interests of Society and Defendant

The State argues that the interests of society are best served by keeping the
charges in this Court, in part, because of Defendant’s prior child welfare history and
the risk that, upon leaving the Family Court system, he would remain
dependent/neglected and without parental supervision Thus, the argument goes,
Defendant would likely recidivate immediately into a criminal lifestyle Instead, the
State believes that a longer period of incarceration in adult prison is best in order to
ensure the protection of society.

This Court disagrees and finds that the interests of society and Defendant
would be best served by transfer to the Family Court. Placing a juvenile in adult
prison, immersed with other adult offenders, and without the benefit of targeted
rehabilitative services runs against the interests of society.

Moreover, every indication is that Defendant is amenable to the rehabilitative
processes of the Family Court. His young age, lack of prior treatment, and his
minimal juvenile history all suggest that transfer to the Family Court is appropriate
Though the nature of the charges is serious, all the other § 1011(b) factors point
strongly in favor of transfer. So, too, do the interests of society and Defendant weigh
heavily in favor of transfer to the Family Court.28

 

26 Additionally, the Family Court may extend jurisdiction over Defendant until age twenty-one
See 10 Del. C. §§ 928-29 (2013 & Supp. 2016).

27 Furthermore, the report of Taunya Batista, M.A., admitted at the reverse amenability hearing,
suggests that Defendant is amenable to the rehabilitative processes of the Family Court. See
generally Taunya J. Batista, M.A., Amenability Report Preparea1 for.' Jakevis Lamont Ellington
(July 3, 2017).

28 The fourth factor of § 1011(b)_-0ther relevant factors the Court deems relevant_has been
sufficiently addressed in the other § 101 1(b) factors such that the Court need not explicitly address
this factor in its opinion.

Conclusion

“[T]he interests of justice would be best served by” the transfer of Defendant’ s
case to Family Court.29 As such, for the reasons stated above, Defendant’s Motion
to Transfer the Case to Family Court is GRANTED.

IT IS SO ORDERED.
Sincerely,

/7

Vivian L. Medinilla
Judge

 

oc: Prothonotary

cc: Defendant
Investigative Service Office
Jennifer Skinner, NCCDC

 

29 § ioii(b).
' 10

