Opinion
ID#0104009021.
Submitted: August 2, 2005.
Decided: October 28, 2005.
Upon Defendant's Motion for Sentence Reduction — DENIED.
Michael W. Modica, Esquire, Wilmington, DE.
Renee L. Hrivnak, Esquire, Deputy Attorney General, Carvel State Office Building Wilmington, DE.
Dear Counsel:
This finally decides Defendant's motion for sentence modification. Basically, Defendant pleaded guilty to Trafficking in Cocaine and was immediately sentenced on November 11, 2003. Although Defendant was a first offender, the court sentenced him to five years in prison, two years more than the minimum/mandatory. Now, Defendant asks the court to eliminate the non-mandatory sentence imposed above the three year minimum.
Defendant presents two, somewhat related arguments. First, he claims that the decision to impose non-mandatory time was based on improper judicial fact-finding, which violates Blakely v. Washington. Second, Defendant argues that he did not deserve more than the minimum/mandatory three years.
Blakely v. Washington, 542 U.S. 296 (2004).
After Defendant, through privately retained counsel, filed his motion, the court, by letter/order dated June 30, 2005, required the State to respond. The court also cautioned the State to review the guilty plea and sentencing colloquy carefully, because the court rejected the way Defendant characterized the record. The State filed its response on August 3, 2005.
I.
Defendant's Blakely argument comes too late. If Defendant thought the sentencing proceeding violated his procedural due process rights, he was obliged to take a direct appeal when he first had the chance. Moreover, Blakely does not apply because Delaware's sentencing scheme is different from Washington State's. Our sentencing guidelines are voluntary and non-binding. Blakely, which involved the court's exceeding the standard range based on the court's fact finding, is qualitatively different from the court's exceeding a discretionary guideline that is well within the statutory maximum. Carried to its logical conclusion, Defendant's position makes it impossible for the court to exceed the guidelines' minimum, unless Defendant concedes the grounds on which the court relies. In any event, as the record reveals and the June 30, 2005 letter/order discusses, Defendant declined the court's offer to conduct a presentence investigation. Defendant preferred that the court sentence him immediately, without further inquiry. Therefore, the court properly sentenced Defendant on the record presented.
Moyer v. State, A. 2d 948 (Del. 1982).
Benge v. State, 862 A. 2d 385 (Del. 2004).
II.
As to Defendant's argument that the five year prison sentence is too long, the court reiterates that the sentence was appropriate. The State insisted that Defendant was actually engaged in drug trafficking; he was not merely someone found with a prohibited amount of cocaine. Although the State's initial fears about automatic weapons did not pan out, the available records, including the suppression hearing's transcript, raised substantial concern about Defendant's involvement with the drug underworld.
At this point, almost two years after Defendant was sentenced, the appropriate way to address Defendant's argument is to suggest that he ask the Department of Correction to make an application on his behalf under 11 Del. C. § 4217. If the Department of Correction is satisfied that Defendant's progress in prison justifies sentence reduction and it forwards a favorable recommendation, the court will not object to sentence reduction.
Meanwhile, for the foregoing reasons, Defendant's motion for sentence reduction is DENIED.