Opinion
ID 1501004820
12-04-2023
STATE OF DELAWARE v. KEVIN BAYARD Defendant.
Submitted: November 27, 2023
ORDER
Vivian L. Medinilla Judge
AND NOW TO WIT, 4th day of December 2023, upon consideration of Defendant Kevin Bayard ("Defendant")'s Motion for Modifications of Sentence, the sentence imposed upon Defendant, and the record in this case, it appears to the Court that:
1. On July 21, 2015, Defendant pleaded guilty to Possession of a Firearm by Person Prohibited ("PFBPP") and Drug Dealing (Tier 4). Although Defendant was eligible for sentencing under 11 Del. C. § 4214(a) or § 4214(b), as part of the plea agreement, the State agreed not to seek to have Defendant sentenced as a habitual offender. Also, as part of the plea agreement, immediate sentencing was requested. This Court sentenced Defendant to fifteen years at Level V, suspended after a minimum mandatory incarceration period of ten years for the PFBPP and fifteen years at supervision Level V, suspended after two years on the drug dealing offense; both with various levels of probation to follow.
See Trial Calendar/Plea Hearing: Pled Guilty and Sentenced, D.I. 22.
Defendant agreed in the plea agreement that he was facing ten years minimum mandatory incarceration on the PFBPP based upon the prior violent felony convictions of Trafficking Cocaine (conviction date of June 21, 2006) and Possession with Intent to Deliver (conviction date of March 22, 2006).
2. On August 27, 2015, counsel for Defendant filed a Motion for Modification on his behalf. The Court denied this Motion on December 30, 2015.The Court denied additional requests for sentence modification on February 29, 2016 and March 14, 2018.
See Motion for Modification of Sentence, D.I. 25.
See Order Denying Defendant's Motion, D.I. 28.
See Order Denying Defendant's Motion, D.I. 29.
See Letter Order Denying Defendant's Motion, D.I. 45.
3. In January of 2022, Defendant again filed a Motion for Modification of Sentence. He then requested to eliminate the remaining portion of his Level V time for Level IV. In support, Defendant stated he had completed multiple programs while incarcerated and had job upon release. This Court summarily dismissed his petition as repetitive.
See Motion for Modification of Sentence, D.I. 46.
Id.
Id.
See Order Summarily Dismissing Defendant's Motion, D.I. 47.
4. Defendant now files another motion seeking that the last 6 months of his level V sentence be reduced to Level IV. He reiterates that family support, his achievements and employment available upon release as a home health aid as the same bases for this rehashed request. For the same reasons stated, his motion must be summarily dismissed.
See Motion for Modification of Sentence, D.I. 49.
Id. at 2.
5. Defendant cannot obtain relief under Rule 35(b) where the rule provides no authority for a reduction or suspension of the mandatory portion of his a substantive statutory minimum sentence. Furthermore, "[t]he court will not consider repetitive requests for reduction of sentence." A motion is considered repetitive when it "is preceded by an earlier Rule 35(b) motion, even if the subsequent motion raises new arguments." The bar to repetitive motions has no exceptions. It is absolute and flatly "prohibits repetitive requests for reduction of sentence."
State v. Sturgis, 947 A.2d 1087, 1092 (Del. 2008).
Id.
State v. Culp, 152 A.3d 141, 144 (Del. 2016).
Thomas v. State, 812 A.2d 900, 2002 WL 31681804, at *1 (Del. 2002) (TABLE); see also Jenkins v. State, 954 A.2d 910, 2008 WL 2721536, at *1 (Del. 2008) (TABLE) (affirming the Superior Court's denial of defendant's Rule 35(b) motion for modification where Rule 35(b) "prohibits the filing of repetitive sentence reduction motions."); Morrison v. State, 846 A.2d 238, 2004 WL 716773, at *2 (Del. 2004) (TABLE) (finding that defendant's Rule 35(b) motion for modification "was repetitive, which also precluded its consideration by the Superior Court.").
6. Defendant has previously submitted Motions for Modification, and where such motions were decided, these motions are also barred as repetitive. The Court cannot use its discretion to ignore this bar.
See Motions for Modification D.I. 25; D.I. 27; D.I. 42; D.I. 43; D.I. 46.
See Order Denying Defendant's Motion, D.I. 28; D.I. 29; Letter Order Denying Defendant's Motion, D.I. 45; Order Summarily Dismissing Defendant's Motion, D.I. 47.
Culp, 152 A.3d at 145 (reversing the Superior Court's decision to grant defendant's Motion for Modification where the motion was repetitive and untimely).
IT IS SO ORDERED that Defendant's Motion for Modification of his sentence is again, SUMMARILY DISMISSED.