Submitted: November 19, 2014
Daniel E. Logan, Deputy Attorney General
Mr. Roger Comeger, pro se Investigative Services Office
ORDER DENYING MOTION TO REDUCE SENTENCE
PAUL R. WALLACE, JUDGE
This 5th day of January, 2015, upon consideration of the Defendant's Motion for Sentence Reduction, and the record in this matter, it appears to the Court that:
(1) In January 2014, Ricardo Comeger pleaded guilty to one count of drug dealing and one count of misdemeanor theft. The offenses arose from two different criminal episodes but, because Comeger waived indictment and entered into one dispositive plea agreement, they were heard in one proceeding. Comeger was immediately sentenced to serve an aggregate nine years at Level V suspended after serving 90 days for diminishing levels of supervision.
(2) By mid-August 2014, Comeger was before the Court for a second time for a violation of probation ("VOP"). He was found to have violated the conditions of his probation and was sentenced to: six months at Level V, with no probation to follow, for the VOP-theft-misdemeanor; and seven years at Level V, suspended in full for diminishing levels of supervision, for the VOP-drug dealing. The Court noted the following aggravators in its VOP sentencing order: (1) Comeger's extensive criminal history; and (2) his obvious demonstrated lack of amenability to community supervision at the time.
(3) Comeger filed the present motion under Superior Court Criminal Rule 35(b) requesting reduction of his current Level V term.Comeger claims that his term of imprisonment should be reduced because: (1) as to the VOP-theft portion of his sentence, the Court "went way above guidelines;" (2) as to the VOP-drug dealing, his case may have been affected by the "Medical Examiner's corruption;" and (3) he is "highly interested" in participating in a particular community-based rehabilitation program. The Court may consider such a motion "without presentation, hearing or argument." The Court will decide this motion on the papers filed.
(4) The purpose 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. 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. "The reason for such a rule is to give a sentencing judge a second chance to consider whether the initial sentence is appropriate."
(5) Comeger's allegation that his case may be affected by the investigation of evidence tampering at the former Office of the Chief Medical Examiner, i.e., that the integrity of his conviction might now be questioned, is not cognizable under Rule 35. A motion to reduce a sentence under Rule 35 presupposes a valid conviction.
(6) The fact that a portion of the sentence imposed exceeds SENTAC guidelines does not provide a legal or constitutional basis to attack this sentence which is otherwise within statutory limits. It is, however, a proper factor for the Court weigh when, as here, it is considering a timely Rule 35(b) motion.
(7) The Court has examined Comeger's lone viable claim – that is, his timeous request that the Court simply reconsider and decide if, on further reflection, its VOP sentence now seems unduly harsh – on the merits. Under every iteration of Delaware's criminal rules governing motions to reduce or correct sentences, such entreaties are addressed to the sound discretion of this Court. The Court has fully reviewed Comeger's application, the record of the two subject cases, Comeger's supervision history, and all sentencing information available. The Court finds sentence reduction unwarranted; the sentence (1) was imposed after Comeger was found to have violated the terms of his probated sentence for a second time in a very short span and (2) remains appropriate for the reasons stated at the time of sentencing.
(8) In turn, the Court will exercise its discretion under Rule 35(b) and DENY Comeger's request to reduce or ...