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State v. Colburn

Superior Court of Delaware, New Castle

April 24, 2015


Submitted: March 30, 2015

Brian J. Robertson, Deputy Attorney General

Allison S. Mielke, Jr., Esquire

Charles R. Colburn, pro se



This 24th day of April, 2015, upon consideration of the Defendant's Motion for Sentence Reduction/Modification, and the record in this matter, it appears to the Court that:

(1) On January 7, 2015, Charles R. Colburn pleaded guilty to Drug Dealing – Heroin (as a class B felony), Possession of a Firearm During the Commission of a Felony ("PFDCF"), and Possession of a Firearm by a Person Prohibited ("PFBPP"), admitted to a then-pending violation of probation at a fast-track violation of probation ("VOP") calendar, [1] and joined with the State on a sentencing recommendation.[2] He did so in exchange for dismissal of the remaining charges and the favorable joint sentencing recommendation (the State's withholding of an habitual criminal petition[3] and request for nine years unsuspended imprisonment).[4] Mr. Colburn was immediately sentenced to serve: (1) PFDCF – five years at Level V; (2) PFBPP – two years at Level V; and (3) drug dealing – 25 years at Level V suspended after serving two years for diminishing levels of supervision and intensive probation.[5] The first seven years of his cumulative sentence are comprised of minimum terms of incarceration that must be imposed and cannot be suspended.[6]

(2) Mr. Colburn filed no direct appeal from his convictions or sentence.

(3) Instead, Mr. Colburn docketed the present motion under Superior Court Criminal Rule 35(b) requesting reduction of his cumulative nine-year Level V term by two years.[7] In short, Mr. Colburn asks the Court to suspend the entire two years of imprisonment imposed for the PFBPP count.[8] According to Mr. Colburn, his term of imprisonment should be reduced because: (1) he is now engaged in rehabilitative programming in prison and wishes to start a non-profit organization when released; (2) he has family support for these efforts; (3) he believes he has employment opportunities when released; (4) he faced familial and personal hardship as a child and young person; and (5) this term of imprisonment far exceeds any prior sentence he served.[9]

(4) The Court may consider such a motion "without presentation, hearing or argument."[10] The Court will decide this motion on the papers filed.[11]

(5) 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.[12] 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.[13] "The reason for such a rule is to give a sentencing judge a second chance to consider whether the initial sentence is appropriate."[14]

(6) The Court has examined Mr. Colburn's claim – i.e., his request that the Court reconsider and decide if, on further reflection, its sentence now seems unduly harsh – on the merits. Under every iteration of Delaware's criminal rules governing motions to reduce sentences, such entreaties are addressed to the sound discretion of this Court.[15]

(7) It is worth mentioning first that Mr. Colburn expressly agreed to the sentence imposed ("a sentence incorporating a total of non-suspended Level Five time of nine years"), [16] obtained the benefit of that express agreement, and then, only 71 days thereafter, expressly asked the Court to undercut that agreement for him by striking two years from his sentence. While not controlling, that is a proper factor for the Court to weigh when, as here, it is considering a timely Rule 35(b) motion.[17]

(8) That said, the Court has fully reviewed Mr. Colburn's application, the record of his case, Mr. Colburn's prior supervision history, and all sentencing information available. The Court noted the following aggravators in its sentencing order: (1) Mr. Colburn's statutory habitual criminal status; and (2) that this was a negotiated plea and sentencing recommendation.[18] Further, Mr. Colburn has demonstrated a lack of amenability to community supervision as evidenced by his numerous previous violations of probation related to his multiple drug offenses. The Court finds that when all sentencing factors in his case are considered, Mr. Colburn's stated aspirations may be commendable, but they do not compel a sentence reduction ...

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