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State v. Reed

Superior Court of Delaware, New Castle

December 16, 2014

DEVON D. REED, Defendant.

Submitted: November 26, 2014.

Mark A. Denney, Deputy Attorney General Mr. Devon D. Reed, pro se Investigative Services Office.


Paul R. Wallace, Judge.

This 16th day of December, 2014, upon consideration of the Defendant's Motion for Sentence Reduction/Modification, and the record in this matter, it appears to the Court that:

(1) In May 2011, Devon D. Reed pleaded guilty to reckless endangering first degree (as a lesser offense of attempted murder) and possession of a firearm by a person prohibited.[1] He was immediately sentenced to serve for the reckless endangering count[2] five years at Level V suspended for 18 months at supervision Level III.[3]

(2) On October 23, 2013, Reed was before the Court for a contested hearing for violating conditions of his probated sentence ("VOP"). He was found in violation and was sentenced to three years at Level V with no probation to follow[4] for the VOP related to his reckless endangering charge.[5]

(3) Reed's serial efforts to reduce that Level V sentence ensued. This is his third attempt in the last six months to do so.

(4) In June 2014, Reed docketed his first motion under Superior Court Criminal Rule 35(b) requesting reduction of this Level V term.[6] Reed captioned and explained his claims that his term of imprisonment should be reduced as follows: (1) "Remorse and a Desire to Change" – for the first time he experienced a sense of loss with incarceration and "realize[d] now that [he] need[ed] help;" (2) "Rehabilitation" – he had always had a substance abuse problem but never had any form of treatment; and (3) "Plans & Goals" – he planned to complete a substance abuse program in prison and get a GED.[7] Reed moved that his Level V term for this VOP be reduced to successful completion of the Level V substance abuse treatment program that had been ordered in a separate case.[8] The Court fully reviewed the sentencing records of both cases and denied Reed's motion.[9]

(5) Less than two weeks after that denial, Reed docketed his second Rule 35(b) motion, again requesting reduction of the same Level V term. Reed then captioned and explained his claims thusly: (1) "Excessive Time" – Reed complained that his 3-year VOP sentence was "outside of the sentencing guidelines;" (2) "Education" – he was working toward obtaining his GED or high school diploma; and (3) "Rehabilitation" – the 3-year VOP Level V term was not suspended for successful completion of the Level V substance abuse treatment program that was ordered in his separate case. Reed asked that his Level V term for this VOP be cut in half.[10] The Court denied that second motion.[11]

(6) Reed has now filed his third sentence reduction motion in six months requesting reduction of his three-year Level V term. Reed's claims therein are familiar: (1) "Excessive Time;" (2) "Rehabilitation;" and (3) "Employment" – he was employed and supporting children before his re-incarceration.

(7) Just as it was constrained to with his prior motions, the Court must consider Reed's present entreaty under the provisions of Criminal Rule 35(b).[12] The Court may consider such a motion "without presentation, hearing or argument."[13] The Court will decide Reed's motion on the papers filed.

(8) The intent of Superior Court Criminal Rule 35(b) historically has been to provide a reasonable period for the Court to consider alteration of its sentencing judgments.[14] Where a motion for reduction of sentence of imprisonment is filed within 90 days of sentencing, the Court has broad discretion to decide if it should alter its judgment.[15] The reason for such a rule is to give a sentencing judge a second chance to consider whether the initial sentence is appropriate.[16] But there are certain procedural requirements under the rule that must be met; relief is barred when they are not.

(9) The first is timeliness.[17] Rule 35(b) requires that applications to reduce imprisonment be filed promptly[18] – i.e. within 90 days of the sentence's imposition – "otherwise, the Court loses jurisdiction" to act thereon.[19] An exception to this bar exists: to overcome the 90-day time limitation, an inmate seeking to reduce a sentence of imprisonment on his or her own motion must demonstrate "extraordinary circumstances."[20]

(10) Also found in Rule 35(b) is a separate and more unforgiving bar: "[t]he [C]ourt will not consider repetitive requests for reduction of sentence."[21] Unlike the 90-day jurisdictional limit with its "extraordinary circumstances" exception, the bar to repetitive motions has no exception. Instead, this bar is absolute and flatly "prohibits repetitive requests for reduction of sentence."[22]

(11) When considering applications for postconviction relief under its criminal rules, this Court addresses any applicable procedural bars before turning to the merits.[23] So too here. This policy protects the integrity of the Court's rules and the finality of its judgments. Addressing the merits of a case that does not meet procedural requirements effectively renders our procedural rules meaningless.[24]

(12) Consideration of whether any inmate can avoid Rule 35(b)'s time bar may require an examination of the substance of any claimed "extraordinary circumstances." Whereas the determination of whether a Rule 35(b) application is repetitive is relatively facile. In turn, when evaluating whether an inmate's application meets the procedural requirements of Rule 35(b), the Court should first determine whether it is repetitive.[25] The Court does so here.

(13) Even if Reed's untimeliness were excusable, which he makes no attempt to demonstrate, "th[is] . . . Court [i]s, nevertheless, compelled to deny the motion as repetitive."[26] Thus, relief on this, Reed's third reduction request, is "barred by the prohibition in Rule 35(b) on repetitive motions."[27]

NOW, THEREFORE, IT IS ORDERED that Devon D. Reed's third motion for reduction of sentence is DENIED.

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