Opinion
I.D. No. 1103018874
12-23-2019
STATE OF DELAWARE, v. KENDALL M. SMITH, Defendant.
ORDER
On this 23rd day of December, 2019, upon consideration of Defendant's Petition for Review (the "Petition"), Delaware Superior Court Criminal Rule 35 ("Rule 35"), Delaware Superior Court Criminal Rule 61 ("Rule 61"), statutory and decisional law, and the record in this case, IT APPEARS THAT:
D.I. 102, 103.
1. On December 16, 2011, Defendant pled guilty to Murder in the Second Degree. On April 8, 2012, he was sentenced to 30 years at Level V with probation to follow.
D.I. 25.
D.I. 46.
2. On August 30, 2019, Defendant filed this Petition. On October 18, 2019, the Court received a letter from Defendant that supplements the Petition by reasserting one of the same claims.
D.I. 103.
3. Defendant's Petition does not specifically identify the applicable Superior Court Rule under which he seeks relief. Instead, Defendant raises two "Issues" and makes five requests. The Court interprets Defendant's Petition primarily as a motion for correction of illegal sentence pursuant to Rule 35(a), and secondarily as a motion for postconviction relief pursuant to Rule 61.
D.I. 102.
4. Before the Court addresses the merits of a Rule 35 or Rule 61 motion, it must first determine whether the motion is procedurally barred. Rule 35(b) provides that any motion filed more than 90 days after the imposition of a sentence will be considered by the Court "only in extraordinary circumstances or pursuant to 11 Del. C. § 4217." And the Court "will not consider repetitive requests for reduction of sentence." Rule 35(a), however, provides that "the court may correct an illegal sentence at any time."
Super. Ct. Crim. R. 35(b) (emphasis added).
Id. (emphasis added).
5. On April 18, 2012, Defendant filed his first motion for modification of sentence under Rule 35(b). On August 8, 2018, Defendant filed a second motion for modification, pursuant to Rule 35(b). The Court denied both of Defendant's previous motions and held that his sentence was appropriate. Therefore, any portion of Defendant's August 30, 2019 Petition that seeks modification of his sentence under Rule 35(b) is untimely under the 90-day limit and repetitive.
D.I. 48.
D.I. 100.
D.I. 50; D.I. 101.
6. Rule 61(d)(2) provides that "[a] second or subsequent motion under this rule shall be summarily dismissed, unless the movant was convicted after a trial..."
7. Defendant has previously filed two motions for post-conviction relief, making this his third motion pursuant to Rule 61. Defendant was not convicted after a trial because he pled guilty in this case. Therefore, Defendant's claims seeking post-conviction relief are procedurally barred from consideration pursuant to Rule 61(d)(2).
D.I. 54; D.I. 81.
D.I. 25.
8. Defendant's first "issue" contends that the Court imposed an illegal sentence, and requests that the Court correct his sentence. This ground is properly considered as a motion pursuant to Rule 35(a), Correction of Illegal Sentence, and is not subject to the relevant procedural bars.
9. Defendant asserts that the sentencing judge imposed a longer sentence than the state-recommended 20 years based on "improper considerations". Defendant alleges that the sentencing judge relied on "the Assault 2nd charges/indictments that were established during...my Murder proceedings" and objects to their consideration because "[he] was neither found guilty nor not guilty of the said indictments."
D.I. 103.
10. Appellate review of a sentence is extremely limited and generally ends upon a determination that the sentence is within the statutory limits. Also, "[s]entencing courts are specifically entitled to rely upon information regarding other, unproven crimes."
Mayes v. State, 604 A.2d 839, 842 (Del. 1992).
Id. at 843 (citing Williams v. New York, 337 U.S. 241 (1949)).
11. Because the sentence imposed in this case was within the statutory limits, and the record reveals no abuse of discretion on the part of the sentencing judge, the Court concludes that this claim is without merit.
11 Del.C. § 4205(b)(1) --------
12. The Court concludes that Defendant's 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.
IT IS HEREBY ORDERED that Defendant's Motion for Correction of Illegal Sentence is DENIED, and Defendant's motions for Sentence reduction and post-conviction relief are SUMMARILY DISMISSED.
IT IS SO ORDERED.
/s/_________
Sheldon K. Rennie, Judge Original to Prothonotary cc: Kendall M. Smith (SBI# 00619570)
James Kriner, DAG, Delaware Department of Justice, Wilmington, DE