Opinion
ID No. 1904019832
04-29-2020
STATE OF DELAWARE, v. KENDELL R. CRENSHAW, Defendant.
ORDER
Upon consideration of Defendant's Motion for Modification of Sentence ("Motion"), Superior Court Criminal Rule 35, statutory and decisional law, and the record in this case, IT APPEARS THAT:
D.I. 32.
1. On October 15, 2019, Defendant pled guilty to Tampering With Physical Evidence. On November 7, 2019, the State filed a Motion to Declare Defendant an Habitual Offender. On November 8, 2019, Defendant was sentenced as an habitual offender to 5 years at Level V, suspended after 9 months for supervision Level III.
D.I. 25
D.I. 28. The Court granted this Motion at Defendant's Sentencing pursuant to 11 Del. C. § 4214(a). See D.I. 30.
D.I. 28, 31 (ASOP Sentence Order filed and signed on 11/26/19).
2. In the instant Motion, Defendant asks the Court to suspend the remaining Level V time of his sentence so that he may begin the Level III portion of his sentence. In support of the Motion, Defendant cites (1) his "job security" pending upon release, (2) his need to support his family, and (3) his potential exposure to COVID-19.
D.I. 32.
Id.
3. Superior Court Criminal Rule 35 governs motions for modification of sentence. "Under Rule 35(b), a motion for sentence modification must be filed within ninety days of sentencing, absent a showing of 'extraordinary circumstances.'"
Croll v. State, 2020 WL 1909193, at *1 (Del. Apr. 17, 2020) (TABLE) (affirming the Superior Court's denial of a motion for modification of sentence where the motion was repetitive and filed beyond the 90-day limit); see Hewett v. State, 2014 WL 5020251, at *1 (Del. Oct. 7, 2014) ("When a motion for reduction of sentence is filed within ninety days of sentencing, the Superior Court has broad discretion to decide whether to alter its judgment.").
4. Defendant filed this Motion more than 90 days after imposition of the sentence, and therefore the Motion is time-barred. The Court will consider an application made more than 90 days after the imposition of sentence only in "extraordinary circumstances," or pursuant to 11 Del. C. § 4217. Delaware law places a heavy burden on the moving party to establish extraordinary circumstances in order to "uphold the finality of sentences." "Extraordinary circumstances" excusing an untimely Rule 35(b) motion are circumstances that "specifically justify the delay, are entirely beyond a petitioner's control, and have prevented the applicant from seeking the remedy on a timely basis." Mitigating factors that could have been presented at sentence, exemplary conduct or successful rehabilitation while incarcerated does not constitute "extraordinary circumstances."
State v. Diaz, 2015 WL 1741768, at *2 (Del. Apr. 15, 2015).
State v. Culp, 152 A.3d 141, 145 (Del. 2016) (internal quotations omitted) (quoting Diaz, 2015 WL 1741768, at *2).
Culp, 152 A.3d at 145-46; State v. Liket, 2002 WL 31133101, at *2 (Del. Super. Sept. 25, 2002) (explaining that exemplary conduct or successful rehabilitation during incarceration does not qualify as "extraordinary circumstances" and relief for such achievements is more properly addressed to the parole board). See also United States v. LaMorte, 940 F. Supp. 572, 578 (S.D.N.Y. 1996); United States v. Arcaro, No. 89 Cr. 001, 1992 WL 73366, at *1 (S.D.N.Y. Apr. 1, 1992) (stating that "[w]hile defendant's educational endeavors in prison and his diligent performance of prison job assignments are laudable accomplishments, they do not justify a reduction in sentence.").
5. The Court does not find the existence of any extraordinary circumstances in connection with Defendant's Motion. The sentence is appropriate for all the reasons stated at the time of sentencing. No additional information has been provided to the Court that would warrant a reduction or modification of this sentence.
See D.I. 28. This sentence takes into account Defendant is a habitual offender as defined under 11 Del. C. § 4214(a). --------
NOW, THEREFORE, IT IS HEREBY ORDERED that Defendant's Motion for Modification of Sentence is DENIED.
/s/_________
Jan R. Jurden, President Judge Original to Prothonotary cc: Kendell R. Crenshaw (SBI# 00343186)
Mark A. Denney, DAG