Opinion
ID# 0503013152
11-27-2019
STATE OF DELAWARE v. JEROME SULLINS, Defendant.
Andrew J. Vella, Esquire, Deputy Attorney General, Department of Justice, Wilmington, Delaware, Attorney for the State. Jerome Sullins, Smyrna, Delaware, Defendant, pro se.
On Defendant's "Motion to Run NON-TIS Sentences Concurrent" DENIED.
On Defendant's Motion to "Enforce Condition Imposed" DENIED. ORDER Andrew J. Vella, Esquire, Deputy Attorney General, Department of Justice, Wilmington, Delaware, Attorney for the State. Jerome Sullins, Smyrna, Delaware, Defendant, pro se. COOCH, R.J.
This 27th day of November, 2019, upon consideration of Defendant's Motion, it appears to the Court that:
1. In April 2006, a Superior Court jury convicted Defendant of Trafficking in Cocaine, Possession of Cocaine, Maintaining a Dwelling, and Possession of Drug Paraphernalia. The jury found Defendant not guilty of Possession with Intent to Deliver and Resisting Arrest. In August 2006, Defendant was sentenced to ten years in prison. On July 23, 2007, the Delaware Supreme Court affirmed Defendant's convictions and sentences on direct appeal.
2. On October 25, 2019, Defendant filed a "Motion to Run NON-TIS Sentences Concurrent." In this motion, Defendant "move[s] this Court for an order to run 60 day sentence for [Obey Police Officer] [...] and 10 day sentence for [Reckless Driving] [...] [c]oncurrent with the 14 years Level 5 sentence [...]. Additionally, Defendant "also moves this [C]ourt for an order enforcing the condition imposed at sentence [...]." The Defendant asserts that the condition read as follows: "The defendant shall be evaluated [for] substance abuse and follow recommendations for treatment, [c]ounseling, and screening." Defendant further "[asks] that this [C]ourt appoint TASC to perform the substance abuse evaluation and consider Treatment Plans deemed appropriate by TASC."
3. The Court must determine, when addressing a sentence modification request, whether the procedural mechanism is available in that particular circumstance. Defendant asks this court to modify his sentence by ordering his sentences to run concurrently in light of the recent passage of legislation of the 150th General Assembly that further
expanded a Delaware sentencing court's authority to impose concurrent, rather than consecutive, terms of confinement.
4. Although Defendant does not specifically cite Superior Court Criminal Rule 35(b) ("Rule 35(b)") in his motion, this motion is clearly a request to modify his sentence to run all sentences concurrently and governed under Rule 35(b). "There is no separate procedure, other than that which is provided under Superior Court Criminal Rule 35, to reduce or modify a sentence." However, "Rule 35(b) is not [...] an instrument for re-examination of previously imposed sentences in light of subsequent statutory changes." The purpose of Rule 35(b) is to provide this Court a reasonable period to consider alteration of its sentencing judgment. "The reason for such a rule is to give a sentencing judge a second chance to consider whether the initial sentence is appropriate." Additionally, "[a] request for leniency and reexamination of the sentencing factors [in existence when the original sentence was imposed are] precisely the stuff of which a proper and timely Rule 35(b) motion is made." An untimely Rule 35(b) motion is permitted only when a Defendant demonstrates "extraordinary circumstances" for consideration. This term, "extraordinary circumstances," is defined as "[a] highly unusual set of facts that are not commonly associated with
a particular thing or event." For purposes of Rule 35(b) motions, "extraordinary circumstances" have been found only "when an offender faces some genuinely compelling change in circumstances that makes a resentencing urgent."
5. Delaware Criminal Code §3901 provides for the fixing of terms of imprisonment. Initially, before the legislative change in recent years, § 3901(d) read: "No sentence of confinement of any criminal defendant by any court of this State shall be made to run concurrently with any other sentence of confinement imposed on such criminal defendant." This ban on concurrent terms of incarceration was removed on July 9, 2014, when the General Assembly amended § 3901(d) to provide:
The court shall direct whether the sentence of confinement of any criminal defendant by any court of this State shall be made to run concurrently or consecutively with any other sentence of confinement imposed on such criminal defendant. Notwithstanding the foregoing, no sentence of confinement of any criminal defendant by any court of this State shall be made to run concurrently with any other sentence of confinement imposed on such criminal defendant for any conviction of [certain enumerated] crimes.
6. The retroactive applicability of § 3901 of the Delaware Criminal Code does not exist in the legislative change made with regards to "House Bill #5." In State v. Thomas, this Court provided a very recent and exemplar explanation:
The Delaware Supreme Court's decision in Fountain v. State is both instructive and controlling here. The Court first thoroughly examined and explained Delaware's general rule of
prospectivity (and its possible exceptions). Then, more importantly here, the Court went on to point out that any retroactive application of a sentencing change to those already serving a sentence would "have a large effect on segments of the public, law enforcement and defense resources, and the judiciary itself." And, as a consequence, before retroactively applying any such statutory sentencing change, a Court must be sure that the enacting legislation "provide[s] for retroactivity explicitly and...include[s] special procedures to address its retrospective application."
The General Assembly's non-retroactive intent is even clearer with the 2019 Amended Sentencing Act. For the General Assembly is presumed to have known—when it further amended § 3901(d) to allow greater discretion to concurrently sentence—of these judicial decisions on the retroactivity of such amendments. In the face of that clear, existing, and recent case law, the General Assembly then would have—if it wanted review and modifications for sentenced inmates—provided for new § 3901(d)'s retroactivity explicitly and included special procedures to address its retrospective application. The General Assembly did not. And this Court cannot in its stead.
"[T]he General Assembly neither provided for such retroactivity explicitly nor included special procedures to address its retrospective application." As such, retroactive applicability of Delaware Criminal Code § 3901 is prohibited.
7. With regards to Defendant's request to enforce this Court's condition of requiring a substance abuse evaluation and appoint TASC to perform the substance abuse evaluations, this will be handled by Department of Corrections at Level V.
8. Therefore, Defendant's Motion for Concurrent Sentencing and Defendant's Motion to "Enforce Condition Imposed at [Sentencing]" are both DENIED.
Sullins v. State, 930 A.2d 911 (Del. 2007).
Def.'s Mot. at 1.
Id.
Id.
Id.
State v. Tollis, 126 A.3d 1117, 1119 (Del. Super. Ct. 2016) See e.g., State v. Culp, 152 A.3d 141 (Del. 2016) (Delaware Supreme Court examines the several sources of authority a trial court might have - but that were then inapplicable or unavailable - when the trial court reduced sentence); see also State v. Redden, 111 A.3d 602, 606 (Del. Super. Ct. 2015) (When considering requests for sentence modification, "this Court addresses any applicable procedural bars before turning to the merits.").
See Del. H.B. 5 § 1, 150th Gen. Assem. 82 Del. Laws Ch. 66, § 1 (2019) (amending Del. Code Ann. Tit. 11, § 3901(d)).
Jones v. State, 2003 WL 21210348, at *1 (Del. May 22, 2003).
State v. Thomas, 2019 WL 5704287 (Del. Super. October 31, 2019).
Redden, 111 A.3d at 606.
State v. Reed, 2014 WL 7148921, at *2 (Del. Super. Ct. Dec. 16, 2014) (citing United States v. Ellenbogen, 390 F.2d 537, 541, 543 (2d Cir. 1968) (explaining time limitation and purpose of then-extant sentence reduction provision of Federal Criminal Rule 35, the federal analogue to current Superior Court Criminal Rule 35(b).)); United States v. Maynard, 485 F.2d 247, 248 (9th Cir. 1973) (Rule 35 allows sentencing court "to decide if, on further reflection, the original sentence now seems unduly harsh" such request "is essentially a 'plea for leniency.'") (citations omitted). See also State v. Tinsley, 928 P.2d 1220, 1223 (Alaska Ct. App. 1996) (explaining that under Alaska's like sentence-review rule, court's "authority can be exercised even when there is no reason to reduce the sentence other than the judge's decision to reconsider and show mercy.").
State v. Remedio, 108 A.3d 326, 331-32 (Del. Super. Ct. 2014) (emphasis in original).
State v. Lewis, 797 A.2d 1198 (Del. 2002); State v. Diaz, 2015 WL 1741768, at *2 (Del. Apr. 15, 2015) ("In order to uphold the finality of judgments, a heavy burden is placed on the defendant to prove extraordinary circumstances when a Rule 35 motion is filed outside of ninety days of the imposition of a sentence.").
Diaz, 2015 WL 1741768, at *2 (citing BLACK'S LAW DICTIONARY (10th ed. 2014)); id. (observing also that, in the Rule 35(b) context, "'extraordinary circumstances' are those which 'specifically justify the delay;' are 'entirely beyond a petitioner's control;' and 'have prevented the applicant from seeking the remedy on a timely basis.'"); Remedio, 108 A.3d at 332.
Fountain v. State, 139 A.3d 837, 842 n.20 (Del. 2016).
DEL. CODE ANN. tit. 11, § 3901(d) (1977) (as amended by enactment of 61 DEL. LAWS ch. 158 (1977)).
79 DEL. LAWS ch. 297 (2014) (amending DEL. CODE ANN. tit. 11, § 3901(d)) (hereinafter "2014 Amended Sentencing Act").
State v. Thomas, 2019 WL 5704287 (Del. Super. October 31, 2019).
139 A.3d 837 (Del. 2016).
Id. at 841-42.
Id. at 843.
Id.
State v. Cooper, 575 A.2d 1074, 1076-77 (Del. 1990); Giuricich v. Emtrol Corp., 449 A.2d 232, 239 n. 13 (Del. 1982); Husband v. Wife, 367 A.2d 636, 637 (Del. 1976).
Evans v. State, 212 A.3d 308, 314 (Del. Super. Ct. 2019) (Court is not free to interpret or add to statutes to obtain what a party claims "would be a more 'workable' result or sound public policy.").
Thomas, at p. 14 (Del. Super. October 31, 2019).
IT IS SO ORDERED.
/s/_________
Richard R. Cooch, R.J. cc: Prothonotary
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