Harmless Misapplication of SENTAC Aggravators When Other Valid Factors Support Departure

Anderson v. State, Supreme Court of Delaware (Oct. 24, 2025)

Introduction

In Anderson v. State, the Delaware Supreme Court reaffirmed and sharpened an important principle of Delaware sentencing law: a sentencing judge’s misapplication of a nonbinding SENTAC aggravating factor does not warrant reversal when other, properly applied aggravating factors independently justify a departure above the SENTAC presumptive sentence. The Court expressly treated the error as harmless where the sentence remained within statutory limits and the trial court articulated particularized reasons for the upward variance.

Steven Anderson pleaded no contest to unlawful sexual contact in the first degree arising from a single incident with a nine-year-old child, B.M., on a Townsend, Delaware farm. At sentencing, the Superior Court imposed eight years at Level V suspended after five years for two years at Level III, with no-contact and treatment conditions. That sentence exceeded the SENTAC presumptive prison term (18 months Level V) but was within the statutory maximum (0–8 years for a class D felony).

On appeal, Anderson challenged the Superior Court’s reliance on the SENTAC aggravating factor of “repetitive criminal conduct.” The State conceded that the factor—defined by SENTAC to require two or more same or similar prior convictions—was misapplied, because Anderson had only one prior qualifying conviction (third-degree rape, a B felony). The State nevertheless argued the error was harmless because the court rested its departure on other valid aggravators, most notably that the victim was a very young child and that Anderson needed correctional treatment. The Supreme Court agreed and affirmed.

Summary of the Opinion

• The Delaware Supreme Court reviewed the sentence for abuse of discretion under its “extremely limited” standard for sentences within statutory limits.
• It accepted that the Superior Court misapplied the SENTAC “repetitive criminal conduct” aggravator.
• However, the misapplication was harmless: the sentencing judge identified other valid aggravating factors—chiefly the victim’s age (nine years old) and the need for correctional treatment—that on their own supported exceeding the SENTAC presumptive sentence.
• The Court rejected due process arguments premised on reliance on inaccurate information because the sentencing court relied on the undisputed fact of Anderson’s prior conviction (and not unproven allegations).
• The Court reiterated that SENTAC is nonbinding; a deviation from SENTAC definitions or presumptives is not, by itself, a basis for appellate relief, provided the judge states particularized reasons for the departure.
• Affirmance was also supported by SENTAC’s policy that A and B felony priors (here, a B felony sex offense) are never “washed” by the 10-year clean period and thus remain valid aggravating considerations.

Detailed Analysis

Precedents Cited and Their Influence

• Cooling v. State, 308 A.3d 1193, 2023 WL 8278529 (Del. 2023) (TABLE): The Court relied on Cooling for the proposition that misapplication of one SENTAC aggravator is harmless if other properly applied aggravators justify the sentence. Cooling frames the harmless-error approach in this precise context.
• Haas v. State, 326 A.3d 651, 2024 WL 3634223 (Del. 2024) (TABLE): Alongside Cooling, Haas confirms that a single SENTAC-factor error does not compel reversal where multiple independent aggravators support an above-presumptive sentence.
• Mayes v. State, 604 A.2d 839 (Del. 1992), and Hamilton v. State, 534 A.2d 657, 1987 WL 4687 (Del. 1987) (TABLE): Both articulate the due process limitation that sentencing cannot be based on inaccurate or unreliable information. The Court distinguished these decisions because the Superior Court here relied on an undisputed prior conviction, not unverified “bare allegations.”
• United States v. Robin, 545 F.2d 775 (2d Cir. 1976), citing United States v. Malcolm, 432 F.2d 809 (2d Cir. 1970): These federal cases similarly caution against sentences grounded in materially untrue information. The Delaware Supreme Court explained the principle did not apply on these facts.
• Custis v. United States, 511 U.S. 485 (1994): A defendant generally may not collaterally attack prior convictions at sentencing (except for a right-to-counsel violation). This underscores the propriety of relying on a prior conviction for aggravation, as the Superior Court did.
• Wallace v. State, 326 A.3d 708, 2024 WL 3874151 (Del. 2024) (TABLE), and Wilson v. State, 692 A.2d 416, 1997 WL 90772 (Del. 1997) (TABLE): These cases reaffirm that SENTAC is nonbinding and that a sentencing judge enjoys broad discretion to consider a defendant’s history and non-conviction conduct, so long as the reasons for any deviation from presumptive terms are stated with particularity (per 11 Del. C. § 4204(n) and Supreme Court Administrative Order 76).
• Siple v. State, 701 A.2d 79 (Del. 1997): Siple cautions that pure challenges based solely on deviation from SENTAC are not within the Court’s appellate jurisdiction. The Anderson Court noted the parties assumed jurisdiction here and, in any event, went on to resolve the claim under established abuse-of-discretion and harmless-error principles.

Legal Reasoning

1) Standard of Review and SENTAC’s Nonbinding Nature. The Court began by emphasizing that its review of sentences within statutory limits is “extremely limited.” Sentences are reviewed for abuse of discretion, which occurs if a sentence rests on false or unreliable facts, vindictiveness or bias, or a “closed mind.” The Court reiterated that SENTAC guidelines are advisory; deviation from them is not independently appealable. The only requirement when exceeding a SENTAC presumptive is that the judge must state the reasons “with particularity,” satisfying 11 Del. C. § 4204(n) and Administrative Order 76.

2) Misapplied “Repetitive Criminal Conduct” Factor. The State agreed the Superior Court’s reliance on the “repetitive criminal conduct” aggravator was erroneous under the SENTAC Benchbook definition—two or more prior same/similar convictions were required, and Anderson had only one. The Supreme Court accepted the error but moved directly to harmlessness.

3) Due Process Claim Rejected. Anderson’s due process argument—grounded in Mayes, Hamilton, and Robin—failed because the sentencing court relied on the undisputed fact of a prior conviction, not on unproven accusations. Under Custis, a sentencing court may consider prior convictions; moreover, the Court noted that Anderson’s prior B felony sex conviction is specifically excluded from the SENTAC “wash” policy and therefore remains a live aggravator under SENTAC’s “Prior Violent Criminal Conduct,” independent of the repetitive-offender label.

4) Harmless Error Analysis. Applying Cooling and Haas, the Court held the misapplication of one SENTAC aggravator was harmless because the Superior Court:

• Identified the victim’s age (nine years old) as the “most significant” aggravating factor.
• Relied on the need for correctional treatment—including substance abuse and mental health treatment—as an aggravator supporting confinement.
• Articulated on the record why aggravation outweighed mitigation, thereby satisfying § 4204(n) and Administrative Order 76.

These properly applied, independent aggravators fully support the upward variance from a SENTAC presumptive of 18 months Level V to five years unsuspended Level V, within the statutory maximum of eight years for a class D felony.

5) Legislative Context. Finally, the Court noted that the General Assembly has not empowered SENTAC definitions with binding force such that an incorrect application of a SENTAC label, standing alone, would compel reversal. The governing framework asks only whether the sentencing judge stated particularized reasons and avoided reliance on false or unreliable information; those requirements were met.

Impact and Implications

Anderson consolidates and clarifies a practical rule for Delaware sentencing appeals:

• Harmlessness of SENTAC Labeling Errors. If a trial judge mislabels or misapplies a single SENTAC aggravator, the sentence will be affirmed so long as other valid aggravators—clearly identified on the record—independently support the departure above the presumptive term.
• Renewed Emphasis on Reasons, Not Labels. What matters is the court’s reasoned explanation and reliance on accurate, minimally reliable facts. SENTAC’s taxonomy is helpful but not dispositive. Counsel should focus on undermining the factual bases and weight of the remaining aggravators, not merely the labels.
• Age-of-Victim and Correctional-Treatment Factors. The opinion underscores that crimes against very young children and a demonstrated need for correctional treatment are potent aggravators that can alone justify significant upward variances.
• Old B-Felony Priors Still Count. The decision highlights SENTAC’s “wash” policy exclusion for A and B felonies. Even decades-old B-felony sex convictions remain valid aggravating considerations. Defense counsel should anticipate and address their continued salience.
• Limited Appellate Relief for SENTAC-Based Claims. Consistent with Siple, Wallace, and Wilson, the Court will not reverse merely for deviation from nonbinding guidelines or technical misalignment with a SENTAC definition. The pathway to reversal remains narrow: show reliance on materially inaccurate information, bias/closed mind, or a sentence exceeding statutory limits without adequate reasons.
• Sentencing Practice. Trial judges should continue to explicitly identify aggravating and mitigating facts and explain why a departure is warranted. Clear articulation insulates sentences against appeal even if a particular factor is later deemed misapplied.

Complex Concepts Simplified

• SENTAC Guidelines. Advisory statewide sentencing recommendations used by Delaware courts. They suggest presumptive sentence ranges and list aggravating/mitigating factors. They are not binding law.
• Presumptive Sentence vs. Statutory Maximum. Presumptive sentence: the guideline-recommended term absent aggravation or mitigation (here, 18 months Level V). Statutory maximum: the legal ceiling set by statute (here, 0–8 years for a class D felony). Courts may exceed the presumptive so long as they remain within the statutory maximum and explain their reasons.
• Aggravating Factors. Case-specific facts that justify a harsher sentence than presumptive (e.g., very young victim, need for correctional treatment, prior violent criminal conduct). Mislabeling a factor does not require reversal if other valid factors exist.
• “Repetitive Criminal Conduct.” Under SENTAC, this aggravator requires two or more prior same/similar convictions. Anderson had one, so the factor was misapplied.
• “Wash” Policy. SENTAC generally disregards convictions older than ten conviction-free years, but A and B felony priors are excluded from this wash and remain available to aggravate sentencing. Anderson’s prior B-felony sex conviction fell into this exception.
• Abuse of Discretion in Sentencing. A high-deference standard. Reversal occurs only if the judge relied on false or unreliable facts, showed bias or a closed mind, or imposed an unlawful sentence.
• Harmless Error. A legal mistake that does not affect the outcome because other lawful grounds independently support the decision. Here, other valid aggravators supported the upward variance.
• Levels of Supervision (Delaware). Level V is incarceration in prison. Level III is intensive probation/community supervision. A sentence “8 years at Level V, suspended after 5 years for 2 years at Level III” means five years to be served in prison, with the balance suspended, followed by two years of intensive supervision.

Conclusion

Anderson v. State confirms that Delaware’s appellate courts will not vacate an above-presumptive sentence simply because the trial judge misapplied a particular SENTAC aggravator. So long as the sentence is within statutory limits, the court sets out its reasons with particularity, and other properly applied aggravators—such as a very young victim and a demonstrated need for correctional treatment—independently support the departure, any SENTAC-factor error will be deemed harmless. The opinion also underscores the enduring relevance of A and B felony priors under SENTAC’s wash policy and reaffirms the nonbinding status of SENTAC itself.

The key takeaway is practical: in Delaware, sentencing appeals premised on guideline missteps face long odds. The most viable appellate challenges will continue to be those demonstrating reliance on materially inaccurate information, bias or closed-mindedness, or failure to articulate reasons, rather than technical misapplications of advisory guideline definitions.