IN THE SUPERIOR COURT OF THE STATE OF DELAWARE

State of Delaware, )
)
)
v. )
) ID No. 2206000799
Kathleen McGuiness, )
)
Defendant. )

DEFENDANT’S SENTENCING MEMORANDUM

Pursuant to Superior Court Rule of Criminal Procedure 32, the Defendant

Kathleen McGuiness hereby files this Sentencing Memorandum. In support of her

Memorandum, McGuiness avers the following:

Introduction and Background

1. On October 11, 2021, the State charged McGuiness by indictment in

New Castle County.

2. On March 28, 2022, the State obtained a superseding indictment against

McGuiness in New Castle County.

3. On June 6, 2022, after entering a nolle prosequi in the New Castle

County case, the State charged McGuiness by indictment in Kent County.

4. On June 14, 2022, the Court began a jury trial in this matter.

5. On July 1, 2022, the jury found McGuiness guilty on Counts One,

Three, and Four of the Indictment.

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 6. On July 20, 2022, McGuiness filed a motion for judgment of acquittal

and a motion for new trial.

7. On August 30, 2022, the Court granted McGuiness’s motion for

judgment of acquittal as to Count Three and denied it as to Counts One and Four.

The Court denied McGuiness’s motion for new trial.

8. On September 15, 2022, the Court scheduled McGuiness’s sentencing

for October 19, 2022.

Legal Standard

9. Before imposing a sentence, the Court must “[a]fford counsel for the

defendant an opportunity to speak on behalf of the defendant” and “[a]ddress the

defendant personally and determine if the defendant wishes to make a statement and

to present any information in mitigation of the sentence.” Super. Ct. Crim. R.

32(a)(1).

Argument

Kathleen McGuiness is a Wife, Mother, Daughter, and Friend Who Has Dedicated
Her Life to Public Service

10. Despite the detrimental impact of this case on McGuiness’s life, she is

much more than just “the Defendant” in a criminal matter. McGuiness is also a

daughter, sister, mother, wife, and friend who has dedicated most, if not all, of her

life to public service in the State of Delaware.

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 11. Born on February 14, 1967, McGuiness is the youngest daughter of

John and Margaret Kramedas. McGuiness’s mother worked as a public school

teacher her entire life, ending her career as a sixth grade teacher at Shields

Elementary in Lewes, Delaware. McGuiness’s father worked for the Delaware

Highway Transportation for many years until shifting his career to real estate.

McGuiness’s giving and driven work ethic is likely a result of the example set by

both of her parents. Together, McGuiness’s parents instilled a sense of integrity and

hard work that McGuiness and her three sisters (Margaret, Mary Elizabeth, and

Stephanie) maintained throughout their lives.

12. Shortly after McGuiness was born in Dover, she and her family moved

to Rehoboth Beach. There, McGuiness’s love for community involvement began.

At Cape Henlopen High School, McGuiness partook in many activities, ranging

from student council, cheerleading, basketball, and tennis, to even singing at her

graduation in 1985.

13. Only then did McGuiness move away from Delaware, leaving to attend

the Florida Institute of Technology. McGuiness graduated from the Florida Institute

of Technology in 1990 with a Bachelor’s of Science in biology. McGuiness then

moved to Boston to further her education at Northeastern University. She graduated

from Northeastern University in 1993 with a Bachelor’s of Science in pharmacy.

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 14. Upon graduating from Northeastern University, McGuiness

immediately returned to Rehoboth Beach to begin her pharmacy career. McGuiness

owned and operated her own pharmacy from 1994 to 2002. It was during that time

that McGuiness met Steve McGuiness, a pilot, when he happened to wander into her

pharmacy looking for medicine. Instead, he left with a date with the woman who

would become his wife of now 26 years.

15. Together, the two built a life and family made up of their three children,

Baylan, Stormy, and Saylar. It is easy to see that all of McGuiness’s children are

just as hardworking and driven as their mother. Baylan is a third mate merchant

marine. Stormy is a graduate of the University of Delaware and is currently residing

in Florida while pursuing a doctorate in audiology. Saylar is a third-year student and

member of the Honors Program at the College of Charleston. She is pursuing a

degree in political science and spends a large amount of time volunteering with her

sorority, Chi Omega.

16. The accomplishments of McGuiness’s children should come as no

surprise when looking at the example set by their mother. From the moment

McGuiness returned to Delaware after college, she immediately began to do all she

could to better her community. Starting in 1994, McGuiness began driving for the

Meals on Wheels program in Rehoboth, driving around weekly to deliver meals to

those in need. This began her long career of public service.

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 17. McGuiness worked tirelessly to develop the Rehoboth area to its

greatest potential. She founded Rehoboth Main Street, a program that helped

establish Rehoboth Beach as a thriving beach town bringing in millions of dollars to

the local economy. McGuiness’s efforts starting, managing, and fundraising

Rehoboth Beach’s now-annual fireworks earned her the Delaware Tourism Person

of the Year in 2001. She also earned the Great American Main Street Award in

2009.

18. With McGuiness dedicating so much of her time to the City of

Rehoboth, it was only natural that she was eventually elected to be a city

commissioner, a position that earned less than $50 per month and came with no

benefits. Even while filling this role, McGuiness still managed to serve on the

boards of various organizations, such as the boards of directors for both Lewes and

Rehoboth, the YMCA, Camp Rehoboth, and Meals on Wheels. She also served on

the board of trustees for Delaware State University, stepping down only when

elected State Auditor to avoid the appearance of impropriety. McGuiness also

stepped down as a city commissioner at that time for the same reason.

19. One cannot mention McGuiness’s role as Delaware’s State Auditor

without bringing to mind all that she has accomplished in the position. Just by being

sworn in, McGuiness made history as the first female State Auditor. In the role, she

continued to make an impact as she transformed and modernized an office that had

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understandably grown stagnant over the previous administration’s three-decade

tenure. Over the course of just a single term as State Auditor, McGuiness identified

more than $1,000,000,000 in efficiency savings, government overspending, and

potential revenues.

20. McGuiness’s term as State Auditor saw her serve on six national

committees under the National Association of State Auditors, Comptrollers, and

Treasurers and the National Association of State Auditors. She founded the first

Association of Certified Fraud Examiners chapter in Delaware as well as Delaware’s

“Fraud Awareness Day.” McGuiness collaborated nationally with several other state

auditors and state inspectors general to create and distribute the first-ever National

Audit templates for COVID-19. She also created Project Gray Fox, a portal intended

to ensure transparency into the use of American Rescue Plan Act funds.

21. McGuiness tied her pharmaceutical background to her work as State

Auditor, so much so that she received the 2021 Delaware Pharmacist of the Year

award for the courage displayed and support provided to the Delaware pharmacist

community. But this was not the first time that McGuiness was acknowledged for

her work in pharmacy. In 1997, she received the Delaware Bowl of Hygeia from

the Delaware Pharmacists Society for her Outstanding Community Service. And in

1999, she was named the Delaware Business and Professional Women’s Employer

of the Year. Recently, McGuiness continued to give back to the community by

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teaching pharmacy technical certification night classes at Sussex Technical High

School.

22. Outside of her formal responsibilities and duties, McGuiness volunteers

for the Lewes and Rehoboth Rotaries, Flags for Heroes, Ministry of Caring, Food

Bank of Delaware, Races 2 Run, Seashore Striders, and Tunnels to Towers. She

also helps fundraise for the Rehoboth Fire Company, La Esperanza, and Sister

Rose’s Diaper Drive, and she donates regularly to clothing drives, coat drives, and

the Salvation Army.

23. For more than 13 years, McGuiness has been an active volunteer with

the Delaware Medical Reserve Corps. She volunteered every week during the height

of the pandemic, administering COVID-19 vaccinations to those in need.

24. McGuiness supports the Special Olympics of Delaware, the Delaware

Blood Bank, The Art League, One Village Alliance, League of Women Voters, the

Delaware Ovarian Cancer Foundation, the Delaware Breast Cancer Association,

Boys and Girls Club of Delaware, Sussex County AIDS Committee, Arpri

Foundation, Knights of Columbus, Girl Scouts of the Chesapeake Bay, and Beebe

Hospital.

25. McGuiness promotes youths as the future of their communities. She

serves as “principal of the day” at a different school each year. At the Sussex Family

YMCA, McGuiness taught Tae Kwon Do to middle-school students, coached girls

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basketball, and led fitness boot camp classes. She also coached soccer at the

Henlopen Soccer Club for several years.

26. This cursory review of what she has accomplished for communities at

the local and state levels conclusively demonstrates that McGuiness has generously

dedicated her life to public service.

The Appropriate Sentence

27. After serial indictments, a high-profile trial, and the resulting public

opprobrium, McGuiness lost her reelection campaign. She will walk out of the

Auditor’s Office for the last time on Friday, December 30, 2022. Nevertheless,

prominent members of the General Assembly tirelessly call on the Governor to

remove her from office even sooner. (A copy of Senate Concurrent Resolution No.

128 is attached hereto as Exhibit A.) The Governor has never rejected these calls,

but rather deferred his decision until this sentencing. (A copy of the Governor’s

Statement is attached hereto as Exhibit B.)

28. Consistent with the presumptive sentences set forth in the Delaware

Sentencing Accountability Commission (“SENTAC”) Benchbook, the appropriate

sentence is a fine of $1,000.

29. This sentence would be sufficient but not greater than necessary to

achieve SENTAC’s goals. As the SENTAC Benchbook explains, “offenders should

be sentenced to the least restrictive and most cost-effective sanction possible given

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the severity of the offense, the criminal history of the offender and the focus, which

is, above all, to protect the public’s safety.” Del. Sent’g Accountability Comm’n,

State of Del., Benchbook 2021-22 (“SENTAC Benchbook”) at 20 (last visited Oct.

14, 2022), https://cjc.delaware.gov/wp-

content/uploads/sites/61/2022/06/Benchbook-2021-22-Final-with-edits060822.pdf.

30. As the Court knows, this matter involves the first-ever prosecution and

conviction for conflict of interest under 29 Del C. § 5805. Accordingly, the

SENTAC Benchbook does not prescribe a presumptive sentence for Count One.

31. The SENTAC Benchbook does, however, prescribe a presumptive

sentence for official misconduct under 11 Del. C. § 1211, first offense: 0 to 12

months of Level I probation and a fine up to $2,300. SENTAC Benchbook at 78–

79. With acceptance of responsibility, the maximum presumptive sentence for

Count Four is 9 months of Level I probation. Id.

32. Based on Delaware precedent, McGuiness requests a within-guidelines

sentence of 0 months of probation and a fine of $1,000. This is a fair and just

sentence for a dedicated public servant who was convicted of conduct that is

completely anomalous and at odds with her ethical values.

33. In particular, there is no purpose to be advanced by sentencing

McGuiness to a period of either imprisonment or probation at any level. There can

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be no credible suggestion that such a sentence is needed to protect the public or to

further some rehabilitative or restitutionary objective.

34. One year ago, the Delaware Supreme Court published the leading

official misconduct case, Capriglione v. State ex rel. Jennings, in which the Superior

Court sentenced an elected official to one year of probation and ordered him to pay

a fine of $75 and approximately $3,800 in restitution. 279 A.3d 803, 805 (Del.

2021). Probation was warranted in Capriglione because the official had pled guilty

to careless driving and official misconduct based on his intentional deletion of

municipal surveillance footage that had captured his reckless driving and collision.

See id. at 804. Here, by contrast, no such cover-up or physical damage occurred,

McGuiness did not engage in conduct that she knew was illegal, and no such

community supervision is necessary.

35. Earlier this year, this Court sentenced Theo Gregory, the former

Wilmington City Council president convicted of funneling public money to a

nonprofit he controlled, to pay a fine of $1,000 and $12,000 in restitution. See

Xerxes Wilson, Former Wilmington City Council President Theo Gregory sentenced

for misconduct conviction, Del. Online (Feb. 15, 2022),

https://www.delawareonline.com/story/news/2022/02/15/theo-gregory-ex-

wilmington-city-council-head-sentenced-misconduct/6754718001/. Even that

clearly illegal conduct did not warrant probation. See id.

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 36. Other sentences for official misconduct, particularly those involving

imprisonment and probation, involved much more dangerous conduct that the

perpetrators knew was obviously illegal. See, e.g., Harrison v. Baylor, 548 F. Supp.

1037, 1038 (D. Del. 1982) (discussing Delaware Superior Court sentence of six

months imprisonment and four-and-one-half years of probation for “receiving a

bribe, delivery of a non-narcotic schedule controlled substance, conspiracy second

degree, official misconduct, and promoting prison contraband”).

37. Unlike the officials in those cases, McGuiness was convicted of

participating in the hiring of her daughter. McGuiness did not know that she was

engaging in illegal conduct, and she made no effort whatsoever to conceal the fact

that she had hired her daughter. Clearly, the conduct that led to her conviction falls

on the low end of the sentencing spectrum.

38. The high-profile nature of this case has already advanced SENTAC’s

goals. The serial indictments alone deterred McGuiness specifically and the

community generally against conflicts of interest and official misconduct. Then a

month-long trial put McGuiness’s young daughter in the spotlight. Shortly after she

was found guilty, McGuiness lost her reelection campaign, presumably because of

this prosecution and conviction. She will leave the Auditor’s Office in two months

and will have no ability to reoffend. Now, the possibility of removal by the Governor

as early as the day of sentencing is her sword of Damocles.

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 39. There is simply no need for probation in this case. McGuiness has no

criminal history, no means, motive, or opportunity to reoffend, and no other factor

warranting community supervision. The imposition of a $1,000 fine on top of the

public criticism and political loss that she has already faced—as well as the

possibility of removal that she now faces—is punishment enough.

Conclusion

For the foregoing reasons, the appropriate sentence is a fine of $1,000.

Dated: October 14, 2022 McCARTER & ENGLISH, LLP

/s/ Steven P. Wood

Steven P. Wood (#2309)
Chelsea A. Botsch (#6715)
Renaissance Centre
405 North King Street, 8th Floor
Wilmington, Delaware 19801
Tel: (302) 984-6300

Of Counsel:

Dean A. Elwell
MCCARTER & ENGLISH, LLP
265 Franklin Street
Boston, MA 02110
Tel: (617) 449-6520

Attorneys for Defendant

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 CERTIFICATE OF SERVICE

I hereby certify that on the 14th day of October, 2022, I caused to be served

via email a true and correct copy of the above and foregoing document upon all

counsel of record.

/s/ Steven P. Wood

Steven P. Wood (#2309)

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EXHIBIT A
 SPONSOR: Sen. Sokola & Sen. Townsend & Sen. Lockman
Rep. Baumbach

DELAWARE STATE SENATE

151st GENERAL ASSEMBLY

SENATE CONCURRENT RESOLUTION NO. 128

PROVIDING NOTICE OF A HEARING ON, AND THE ALLEGED REASONABLE CAUSE FOR, THE REMOVAL,
UNDER § 13 OF ARTICLE III OF THE DELAWARE CONSTITUTION, OF KATHLEEN K. MCGUINESS, AUDITOR
OF ACCOUNTS.

1 WHEREAS, on July 1, 2022, Kathleen K. McGuiness, Auditor of Accounts, (“Auditor”) was found guilty, by a

2 jury of her peers, of violating § 5805 of Title 29 of the Delaware Code [the State Employees’, Officers’ and Officials’ Code

3 of Conduct], § 6903 of Title 29 of the Delaware Code [Structuring: Noncompliance with Procurement Law], and § 1211 of

4 Title 11 of the Delaware Code [Official Misconduct] (“the Jury Verdict”); and

5 WHEREAS, § 13 of Article III of the Delaware Constitution (“Section 13”) authorizes the General Assembly, by a

6 two-thirds vote of all the members elected to each House of the General Assembly, to address the Governor to request the

7 Governor remove an officer of this State for reasonable cause; and

8 WHEREAS, the Jury Verdict presents the question whether reasonable cause exists for the Governor to remove

9 the Auditor under Section 13, especially in light of the General Assembly’s previous finding, under § 5802(1) of Title 29 of

10 the Delaware Code, that “[i]n our democratic form of government, the conduct of officers and employees of the State must

11 hold the respect and confidence of the people. They must, therefore, avoid conduct which is in violation of their public trust

12 or which creates a justifiable impression among the public that such trust is being violated.”; and

13 WHEREAS, the Delaware Supreme Court, in response to a request for an advisory opinion under § 141 of Title 10

14 of the Delaware Code made by Senate Concurrent Resolution No. 63, advised the 151st General Assembly that under

15 Section 13 the General Assembly must provide, by concurrent resolution, notice of a hearing on, and the alleged reasonable

16 cause for, the removal of an officer; and

17 WHEREAS, the General Assembly finds it is appropriate at this time to begin proceedings under Section 13.

18 NOW, THEREFORE:

19 BE IT RESOLVED by the Senate of the 151st General Assembly of the State of Delaware, the House of

20 Representatives concurring therein, that Kathleen K. McGuiness, Auditor of Accounts, is provided notice that the General

21 Assembly intends to hold a hearing, in the form of a joint session of the General Assembly, on a date on or after 10 days

22 following final passage of this Concurrent Resolution, on the removal of the Auditor under § 13 of Article III of the

23 Delaware Constitution based on the Jury Verdict that the Auditor violated the following:
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24 (1) § 5805 of Title 29 of the Delaware Code [the State Employees’, Officers’ and Officials’ Code of Conduct].

25 (2) § 6903 of Title 29 of the Delaware Code [Structuring: Noncompliance with Procurement Law].

26 (3) § 1211 of Title 11 of the Delaware Code [Official Misconduct].

27 BE IT FURTHER RESOLVED that the 151st General Assembly directs the President Pro Tempore of the Senate

28 and Speaker of the House of Representatives to set the specific date and time of the hearing and to provide adequate notice

29 of the hearing to the Auditor and members of the General Assembly.

30 BE IT FURTHER RESOLVED that, as contemplated by the Delaware Supreme Court in its advisory opinion, the

31 151st General Assembly shall adopt procedural rules for the hearing before it convenes in joint session.

32 BE IT FURTHER RESOLVED that the 151st General Assembly directs the Secretary of the Senate to send a copy

33 of this Concurrent Resolution to the Auditor immediately following final passage of this Concurrent Resolution.

SYNOPSIS
This Concurrent Resolution provides notice of a hearing on, and the alleged reasonable cause for, the removal,
under § 13 of Article III of the Delaware Constitution, of Kathleen K. McGuiness, Auditor of Accounts, following the July
1, 2022 jury verdict of Guilty on counts that include misconduct in office.

Author: Senator Sokola

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EXHIBIT B
Statement Regarding the Auditor of Accounts
WILMINGTON, Del. – The Office of Governor John Carney on Monday issued the following statement:

“The Auditor of Accounts has been found guilty by a jury of three misdemeanors. The Delaware Supreme Court has made it
clear that under Article XV, Section 6 of the Delaware Constitution, addressing the removal of “any public officer convicted
of misbehavior in office or of any infamous crime,” the Governor has no power to act until after the entry of a judgment of
conviction by the Superior Court. (See Slawik v. Folsom, 410 A.2d 512 (Del. 1979). The Superior Court has not yet entered
a judgement of conviction in the proceeding.

The Governor has indicated that he believes the Auditor cannot do her job effectively under the circumstances, and he
understands that some in the Legislature have called for her immediate removal from office. However, it is the Governor’s
responsibility under the law to await the final determination of the court and then to determine his constitutional obligations
after the entry of judgment.”

  

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