Submitted: April 27, 2015
Cynthia F. Hurlock, Deputy Attorney General Timothy J. Weiler, Esquire Mr. Luis G. Cruz, pro se Investigative Services Office
ORDER DENYING MOTION TO REDUCE SENTENCE
PAUL R. WALLACE, JUDGE
This 26th day of May, 2015, upon consideration of the Defendant's Motion for Sentence Reduction, and the record in this matter, it appears to the Court that:
(1) On September 2, 2014, Luis G. Cruz pleaded guilty to Drug Dealing – Heroin (as a class B felony), Drug Dealing – Marijuana, and Possession of a Firearm by a Person Prohibited ("PFBPP"), and joined with the State on a sentencing recommendation. He did so in exchange for dismissal of the remaining indicted charges and the favorable joint sentencing recommendation (the State's withholding of a habitual criminal petition and Mr. Cruz's agreement to seek not less than 15 years imprisonment). His sentencing occurred several months later, on December 5, 2014, after a pre-sentence investigative report was prepared. Mr. Cruz was sentenced to serve: (1) drug dealing (heroin) – 25 years at Level V suspended after serving five years for diminishing levels of supervision and intensive probation; (2) PFBPP – 15 years at Level V suspended after serving 10 years at Level V for intensive probation; and (3) drug dealing (marijuana) – 8 years at Level V suspended in its entirety for intensive probation. The first twelve years of Mr. Cruz's cumulative sentence are comprised of minimum terms of incarceration that must be imposed and cannot be suspended.
(2) Mr. Cruz filed no direct appeal from his convictions or sentence.
(3) Instead, he docketed the present motion under Superior Court Criminal Rule 35(b) requesting reduction of his cumulative 15-year Level V term by three years. In short, Mr. Cruz asks the Court to suspend all but the minimum terms required by statute. According to Mr. Cruz, his term of imprisonment should be reduced because he: (1) needs substance abuse treatment; (2) has a mental health issue; (3) is a small business owner; and (4) has family responsibilities.
(4) The Court may consider such a motion "without presentation, hearing or argument." The Court will decide this motion on the papers filed. When considering motions for sentence reduction, this Court addresses any applicable procedural bars before turning to the merits.Having reviewed the entirety of the record here, the Court finds there are no bars to the consideration of Mr. Cruz's first request under Rule 35(b).
(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. 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."
(6) The Court has examined Mr. Cruz'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.
(7) It is worth mentioning first that Mr. Cruz expressly agreed to the sentence imposed ("Parties agree to recommend no less than 15 years Level 5 (unsuspended) . . . State agrees not to request mandatory life sentence pursuant to 4214(b) in return for defendant's entry of a guilty plea and agreement not to request less than 15 years Level 5 at sentencing"), obtained the benefit of that express agreement, and then, only 80 days thereafter, expressly asked the Court to undercut that agreement for him by striking three 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.
(8) That said, the Court has fully reviewed Mr. Cruz's application, the record of his case, Mr. Cruz's prior supervision history, and all sentencing information available. The Court has considered: (1) Mr. Cruz's statutory habitual criminal status that would have required a natural life sentence had the State moved for such; and (2) that this was a negotiated plea and sentencing recommendation. The Court further notes Mr. Cruz's demonstrated lack of amenability to community supervision as evidenced by his numerous previous violations of probation related to his prior robbery and drug offenses. After thorough review of the merits of Mr. Cruz's request, the Court finds its original sentencing judgment is appropriate for the reasons stated at the time it was rendered.
(9) Accordingly, the Court will exercise its discretion under Rule 35(b) and DENY Mr. Cruz's request to ...