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State v. Love

Superior Court of Delaware, New Castle

March 6, 2015

THOMAS J. LOVE, Defendant.

Submitted: February 13, 2015

Corrected: March 10, 2015

Diana A. Dunn, Deputy Attorney General

Kathryn A.C. van Amerongen, Esquire

Mr. Thomas J. Love, pro se



This 6th day of March, 2015, upon consideration of the Defendant's Motion to Receive Credit for Time Previously Served and the record in this matter, it appears to the Court that:

(1) On March 9, 2013, Thomas J. Love committed the crime of escape. On March 10, 2013, Love was taken into custody for that offense. At the time it was believed that Love was then-subject to the terms of probated sentences stemming from two prior convictions.[1]

2) On February 24, 2014, Love pleaded guilty to Escape After Conviction.[2] His sentencing occurred several months later, on May 16, 2014, after a pre-sentence investigative report was prepared and the State had filed an habitual criminal petition.[3] Love was sentenced to the minimum required: eight years at Level V to be served under the provisions of the Habitual Criminal Act.[4] He filed no direct appeal from his conviction or sentence.

(3) Love has now filed the present motion requesting that additional credit for time previously served be applied to this sentence.[5]Love seeks to have the period he served from March 10, 2013 (the day he was returned to Level V custody after his escape) until September 24, 2013 (the day before an unrelated violation of probation (VOP) hearing) credited to the Escape After Conviction sentence he is now serving.[6]

(4) Criminal Rule 35(a) permits this Court to correct an illegal sentence "at any time."[7] Relief under Rule 35(a) is available when, inter alia, the sentence imposed: exceeds the statutorily-authorized limits; omits a term required to be imposed by statute; is uncertain as to its substance, or is a sentence that the judgment of conviction did not authorize.[8] Love's – a motion seeking application of the statute requiring sentence credit for all time claimed to have been served at Level V for a particular offense[9] – must be considered under the provisions of Rule 35(a).[10]

(5) Love suggests that he is due additional credit on his escape sentence[11] because a VOP allegation related to a prior attempted robbery conviction was withdrawn.[12] He is correct that that VOP was withdrawn; his sentence in that case had been fully served before the alleged VOP occurred.[13] But Love ignores the VOP sentence that was imposed in a second matter. On September 25, 2013, Love was sentenced for violating the terms of his probated sentence stemming from a felony receiving stolen property conviction.[14] For that VOP, he was sentenced to serve 199 days (from March 10, 2013 to September 25, 2013).[15]

(6) An inmate is entitled to Level V credit for all time served at Level V incarceration.[16] Under then-extant law, however, concurrent sentences of confinement were not permitted in Delaware.[17] A single period of confinement could not be credited against more than one sentence.[18] And to the extent Love might believe otherwise, the new provisions of § 3901(d)[19] – enacted some 16 months after his crime and about two months after his sentencing – have no retroactive effect.[20] So the Court must deny Love's motion to have additional time-served credited to his sentence for escape.

NOW, THEREFORE, IT IS ORDERED that Thomas J. Love's motion to receive credit for time previously served is DENIED.

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