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State v. Hofmann

Superior Court of Delaware, New Castle

August 12, 2014

DIANE E. HOFMANN, Defendant.

Submitted: July 8, 2014



This 12th day of August, 2014, upon consideration of the Defendant's Motion for Sentence Reduction and the record in this matter, it appears to the Court that:

(1) On March 28, 2014, following a jury trial, Diane E. Hofmann was convicted of driving under the influence ("DUI") of alcohol.[1] On June 13, 2014, after completion of a presentence report, she was sentenced to serve two years imprisonment. That term of imprisonment was to be suspended after Hofmann served 3 months for a period of home confinement and then probation with treatment and certain conditions. Hofmann filed no direct appeal from her conviction or sentence.

(2) Less than a month after she was sentenced, Hofmann filed the present motion under Superior Court Criminal Rule 35(b) requesting reduction of her Level V term.[2] Hofmann claims that her 90-day term of imprisonment should be reduced because: (1) she has certain health issues; and (2) she "was never proven to be over [the] legal limit. No breathalizer (sic), No blood test."[3] The Court may consider such a motion "without presentation, hearing or argument."[4] The Court will decide this motion on the record in this case and the papers filed.

(3) The intent of Superior Court Criminal Rule 35(b) has historically been to provide a reasonable period for the Court to consider alteration of its sentencing judgments.[5] Where a motion for reduction of sentence is filed within 90 days of sentencing, the Court has broad discretion to decide if it should alter its judgment. The reason for such a rule is to give a sentencing judge a second chance to consider whether the initial sentence is appropriate.[6] But, while the Court has wide discretion to reduce a sentence upon a timely Rule 35 application, the Court has no authority to reduce or suspend the mandatory portion of any substantive statutory minimum sentence.[7]

(4) The Court was constrained to impose at least a 1-year prison term for this felony DUI conviction, [8] and the Court was statutorily prohibited from suspending the first three months of that sentence.[9] Though Hofmann may suggest that the Court might resort to the provisions of 11 Del. C. § 4221 to address her "failing health" claim, they are not applicable here. Section 4221 requires that "the person to be sentenced" prove by clear and convincing evidence that: (1) she "suffers from a serious physical illness, injury or infirmity"; (2) that serious malady occasions continuing treatment needs; (3) the serious illness, injury or infirmity and its concomitant continuing treatment needs make incarceration inappropriate; and (4) she does not constitute a substantial risk to the community.[10]Hofmann's averments fail to demonstrate the existence of any one of these four prerequisites by clear and convincing evidence.

(5) Lastly, Hofmann's complaint that she was "never proven to be over [the] legal limit" – if it is an attack on the legal integrity of her DUI conviction – is not cognizable under Rule 35. A motion to reduce a sentence under Rule 35(b) presupposes a valid conviction.[11] It is not a vehicle to attack the validity of the conviction for which the inmate is serving a sentence.[12]

(6) In turn, the Court must deny Hofmann's motion to reduce her sentence.

NOW, THEREFORE, IT IS ORDERED that Diane E. Hofmann's motion for reduction of sentence is DENIED.

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