Opinion
ID 2307004229
04-08-2024
STATE OF DELAWARE, v. JAMAL S. WING, Defendant.
Date Submitted: April 5, 2024
ORDER
Jan R. Jurden, President Judge
Upon consideration of Defendant Jamal S. Wing's ("Wing") Motion for Sentence Modification ("Motion"), Superior Court Criminal Rule 35(b), statutory and decisional law, and the record, IT APPEARS THAT:
D.I. 14.
(1) On February 14, 2024, Wing pled guilty to Assault Second Degree (IN23-07-0899) and Driving Under the Influence ("DUI") (IN23-07-0902). That same day, Wing was sentenced as follows: for Assault Second Degree, 8 years at Level V, with credit for 221 days previously served, suspended after 12 months for 1 year Level III; and for DUI, 2 years at Level V, suspended after 3 months for 1 year at Level III.
D.I. 12.
D.I. 13. Wing's probation is to run concurrently and his Level V sentence for DUI is pursuant to a mandatory minimum. Id.
(2) Wing filed the instant Motion on March 28, 2024. In his Motion, Wing requests that the Court modify the remainder of his Level V sentence to either Level IV or Level III GPS. In support of his Motion, Wing states that his father has received a terminal diagnosis and is in hospice.
D.I. 14.
Id.
Id.
(3) The State opposes Wing's Motion. The State maintains that Wing's Level V sentence remains appropriate as "a necessary measure to protect the public from the threat posed by [Wing's] actions and to deter future recidivism."
D.I. 16.
Id.
(4) Superior Court Criminal Rule 35(b) governs motions for modification or reduction of sentence. The purpose of Rule 35(b) is to "provide a reasonable period for the Court to consider alteration of its sentencing judgments." Rule 35(b) contains procedural bars for timeliness and repetitiveness. Under Rule 35(b), the "[C]ourt may reduce a sentence of imprisonment on a motion made within 90 days after the sentence was imposed." However, the Court cannot modify the minimum mandatory portion of a sentence.
Super. Ct. Crim. R. 35(b).
State v. Remedio, 108 A.3d 326, 331 (Del. Super. 2014).
See Super. Ct. Crim. R. 35(b).
Id.
11 Del. C. § 4204(d); D.I. 27.
(5) Wing's Motion is not procedurally barred. His Motion was filed on March 28, 2024, within 90 days of his sentencing date, and is therefore timely.Also, this is Wing's first motion for sentence modification and thus not barred as repetitive.
D.I. 12, D.I. 14.
(6) Rule 35(b) places the burden of proof on "the movant to establish cause to modify a lawfully imposed sentence." Although Rule 35(b) does not set forth specific criteria which must be met before the Court may grant a Rule 35(b) motion, "common sense dictates that the Court may modify a sentence if present circumstances indicate that the previously imposed sentence is no longer appropriate."
State v. Joseph, 2018 WL 1895697, at *1 (Del. Super. Apr. 11, 2018).
State v. Bailey, 2017 WL 8787504, at *1 (Del. Super. Oct. 3, 2017).
(7) Wing's sentence of 3 months at Level V for DUI is a mandatory minimum sentence and the Court has no authority to reduce it.
(8) This is Wing's third DUI offense. Wing drove while impaired and assaulted and injured two Delaware State Police officers during his arrest. He also bit and seriously injured a law enforcement K9.
See D.I. 16.
Id.
Id.
(9) Based on the record, the Court finds Wing's sentence remains appropriate for all the reasons stated at the time of sentencing. NOW, THEREFORE, IT IS HEREBY ORDERED that Jamal S. Wing's Motion for Sentence Modification is DENIED.
IT IS SO ORDERED.