Opinion
ID 1601011422
01-13-2022
State v. Brian Livingston
Jan R. Jurden President Judge
Dear Mr. Livingston:
The Court has received your Motion for Modification and Review of Juvenile Sentence and Motion for Appointment of Counsel dated October 21, 2021. In your Motion for Modification and Review, you seek Court review of your sentence pursuant to 11 Del. C. § 4204A(b)(1). Specifically, you ask that the Court consider "the law and science of the growth and development" of juvenile defendants. For the reasons discussed below, the Court finds that you are ineligible to file a motion pursuant to § 4204A.
D.I. 19.
D.I. 20.
Effective January 1, 2020, formally 11 Del. C. § 4204A(d)(1) is now codified under 11 Del. C. § 4204A(b)(1).
D.I. 19.
§ 4204A(b) provides:
(1) Notwithstanding any provision of this title to the contrary, any offender sentenced to an aggregate term of incarceration in excess of 20 years for any offense or offenses other than murder first degree that were committed prior to the offender's eighteenth birthday shall be
eligible to petition the Superior Court for sentence modification after the offender has served 20 years of the originally imposed Level V sentence.
(3) Notwithstanding any provision of this subsection or title to the contrary, any offender who has petitioned the Superior Court for sentence modification pursuant to this subsection shall not be eligible to submit a second or subsequent petition until at least 5 years have elapsed since the date on which the Court ruled upon the offender's most recent petition. Further, the Superior Court shall have the discretion at the time of each sentence modification hearing to prohibit a subsequent sentence modification petition for a period of time in excess of 5 years if the Superior Court finds there to be no reasonable likelihood that the interests of justice will require another hearing within 5 years.
11 Del. C. § 4204A(b)(1) and (3) (emphasis added).
The Court previously denied your Motion for Modification of Sentence pursuant to Rule 35A. In its April 12, 2021 Order, the Court explained that because you had yet to serve 20 years of your originally imposed Level V sentence, you failed to meet the "time-served eligibility requirements set forth in 11 Del. C. § 4204A," and, therefore, were barred from filing a motion for modification of sentence under Rule 35A. Defendants who petition this Court under § 4204A "shall not be eligible to submit a second or subsequent petition until at least 5 years have elapsed since the date on which the Court ruled upon the offender's most recent petition." As such, you are barred from filing a motion for modification of sentence pursuant to § 4204A.
D.I. 18.
D.I. 18. ("Section 4204A(d)(1) applies in your case. You were sentenced for the offenses of Manslaughter, Second-Degree Robbery, and Second-Degree Conspiracy; you were 17 years old when you committed those offenses; and you were sentenced to an aggregate term of incarceration of 32 years. You have not served 20 years of the originally imposed Level V sentence. In fact, you might never serve 20 years of Level V time because the unsuspended portion of your Level V time is 12 years. Because you have not met "the time-served eligibility requirements set forth in 11 Del. C. § 4204A," you may not file a motion for modification of sentence pursuant to Rule 35A.").
Regarding your Motion for Appointment of Counsel, "[t]he court will appoint counsel for an indigent movant only in the exercise of discretion and for good cause shown, but not otherwise." You fail to show the requisite good cause for appointment of counsel.
Del. Super. Ct. R. Crim. P. 35A(a)(1).
The Court finds that its previous order is appropriate as issued. No information has been provided to the Court that would warrant an additional modification of your sentence. Accordingly, your Motion is DENIED.
IT IS SO ORDERED.