Opinion
ID No. 1608018017 ID No. 1611013028 Cr. A. Nos. IN15-03-1133, etc.
12-31-2019
STATE OF DELAWARE, v. TYREEK DUCETTE, Defendant.
Original to Prothonotary cc: John S. Taylor, Esquire Mr. Tyreek Ducette, pro se Investigative Services Office
ORDER DENYING REPETITIVE MOTION TO REDUCE OR MODIFY SENTENCE
This 31st day of December, 2019, upon consideration of the Defendant Tyreek Ducette's Motion for Sentence Reduction or Modification (D.I. 39) and the record in this matter, it appears to the Court that:
Mr. Ducette filed a carbon copy motions in Case ID Nos. 1608018017 and 1611013028 which were joined for sentencing, and in which his course of sentence reduction efforts to date have been identical. To avoid confusion here, unless otherwise specified, the Court will refer only to the docket numbers in Case ID No. 1608018017.
(1) On March 7, 2017, following a non-jury trial, the Court convicted the Defendant Tyreek Ducette of one count of Possession of a Firearm by a Person Prohibited ("PFBPP") and one count of Possession of Ammunition by a Person Prohibited ("PABPP").
Verdict Form, State v. Tyreek Ducette, ID No. 1608018017 (Del. Super. Ct. Mar.7, 2017) (D.I. 17); see also State v. Ducette, 2019 WL 549585, *1 (Del. Super. Ct. Feb. 11, 2019) (recounting the facts of the Mr. Ducette's crimes).
(2) Mr. Ducette then pleaded guilty in May 2017 to another PFBPP charge arising from a criminal episode that occurred while he was on bail for his first firearms offense and was caught with another loaded handgun.
See Plea Agreement and TIS Guilty Plea Form, State v. Tyreek Ducette, ID No. 1611013028 (Del. Super. Ct. May 1, 2017) (D.I. 15).
(3) His consolidated sentencing hearing occurred a month later on June 16, 2017. Mr. Ducette was sentenced to: (a) PFBPP (IN16-08-1590) - five years at Level V; (b) PFBPP (IN16-11-1507) - five years at Level V; and (c) PABPP (IN16-08-1976) - eight years at Level V, suspended in its entirety for eight years at Level IV (DOC Discretion), suspended after six months for two years at Level III. The sentence has an effective date of November 20, 2016, and includes 63 days of credit time. Each five-year term of imprisonment for his PFBPP convictions (IN16-08-1590 and IN16-11-1507) is a minimum term of incarceration that must be imposed and cannot be suspended or reduced due to Mr. Ducette's prior violent felony conviction. Thus, the unsuspended ten-year Level V term of Mr. Ducette's sentence is comprised of cumulated minimum or mandatory periods of incarceration and cannot be suspended or reduced.
Sentencing Order, State v. Tyreek Ducette, ID Nos. 1608018017 and 1611013028 (Del. Super. Ct. Jun. 16, 2017) (D.I. 20).
Id.
DEL. CODE ANN. tit. 11, § 1448(e)(1)(b) (2016) ("Notwithstanding any provision of this section or Code to the contrary, any person who is a prohibited person as described in this section and who knowingly possesses . . . or controls a firearm . . . while so prohibited shall receive a minimum sentence of . . . [f]ive years at Level V, if the person does so within 10 years of the date of conviction for any violent felony."); id., at § 1448(e)(4) ("Any sentence imposed for a violation of [§ 1448(e)] shall not be subject to suspension and no person convicted for a violation of this subsection shall be eligible for good time, parole or probation during the period of the sentence imposed.").
(4) Mr. Ducette filed no direct appeal from his convictions or sentences. Instead, he docketed an application under Rule 35(b) requesting reduction of his cumulative Level V term. That motion was denied.
D.I. 21; Del. Super. Ct. Crim. R. 35(b) (providing that, under certain conditions, the Court may reduce a sentence of imprisonment on an inmate's motion; providing also that the Court may reduce a term or the conditions of partial confinement or probation).
D.I. 22.
(5) Mr. Ducette has now docketed another motion under Superior Court Criminal Rule 35(b) requesting reduction of his Level V term. He asks now that the Court order his mandatory terms of confinement imposed for his separate PFBPP counts to run concurrently. In effect, this would cut Mr. Ducette's prison term in half. According to Mr. Ducette, this relief is permitted by "New House Bill No. 5."
D.I. 39; Jones v. State, 2003 WL 21210348, at *1 (Del. May 22, 2003) ("There is no separate procedure, other than that which is provided under Superior Court Criminal Rule 35, to reduce or modify a sentence.").
Def. 2nd Rule 35(b) Mot., at 2-3.
Id.
(6) The Court may consider such a motion "without presentation, hearing or argument." The Court will decide his motion on the papers filed and the complete sentencing record in Mr. Ducette's case.
Super. Ct. Crim. R. 35(b).
(7) When considering motions for sentence reduction or modification, this Court addresses any applicable procedural bars before turning to the merits.
State v. Redden, 111 A.3d 602, 606 (Del. Super. Ct. 2015).
(8) As our Supreme Court and this Court have consistently held, Rule 35(b) prohibits consideration of repetitive requests for sentence reduction or modification. There is no exception to the repetitive motion bar. And accordingly, the Court must deny Mr. Ducette's Rule 35(b) motion on this basis alone.
State v. Culp, 152 A.3d 141, 145 (Del. 2016); Redden, 111 A.3d at 608-09.
Culp, 152 A.3d at 144; Redden, 111 A.3d 608-09.
Culp, 152 A.3d at 145; Redden, 111 A.3d 608-09.
(9) To the extent Mr. Ducette suggests that "House Bill No. 5"—which recently further expanded a Delaware sentencing judge's authority to impose concurrent, rather than consecutive terms of confinement—provides some alternative avenue for relief under Rule 35(b), he is incorrect. "Rule 35(b) is not now, nor ever has been, an instrument for reexamination of previously imposed sentences in light of subsequent statutory changes."
See Del. H.B. 5 § 1, 150th Gen. Assem., 82 DEL. LAWS ch. 66, § 1 (2019) (amending DEL. CODE ANN. tit. 11, § 3901(d)).
State v. Thomas, --- A.3d ---, 2019 WL 5704287, at *2 (Del. Super. Ct. Oct. 31, 2019).
(10) Lastly, Mr. Ducette is asking for the retroactive application of the 2019 Amended Sentencing Act (i.e., "House Bill No. 5")—a sentencing reform provision enacted while he was already in prison serving his sentence. As this Court held recently, "the General Assembly neither provided for such retroactivity explicitly nor included special procedures to address its retrospective application." Thus, application of the 2019 Amended Sentencing Act to modify the terms of Mr. Ducette's sentence and allow his separate PFBPP periods of confinement to run concurrently is prohibited.
Thomas, --- A.3d ---, 2019 WL 5704287, at *5.
Id. --------
NOW, THEREFORE, IT IS ORDERED that Mr. Ducette's second motion for reduction or modification of sentence is DENIED. Original to Prothonotary
cc: John S. Taylor, Esquire
Mr. Tyreek Ducette, pro se
Investigative Services Office
/s/_________
Paul R. Wallace, Judge