John A. Parkins, Jr., Superior Court Judge
Defendant has moved for a modification of the sentence imposed after he entered pleas of guilty to one count of third offense DUI and one count of reckless driving alcohol related, the latter of which arose from a separate incident. As part of the plea agreement the State agreed not to seek more than seven months incarceration at Level 5 for the DUI charge. On December 19, 2014 Defendant was sentenced for a third-offense DUI as follows:
• Two years at Level 5. This sentence was imposed pursuant to 11 Del. C. § 4202(k), meaning that Defendant is not entitled to any form of early release.
• Six months at Level 3 probation following completion of the two year Level 5 sentence. This probation was imposed pursuant to 11 Del. C. § 4202(l) because the court determined he was in need of additional treatment and monitoring.
The sentence imposed for the reckless driving alcohol related conviction is not at issue here.
Defendant argues in his Rule 35 motion that (1) his sentence was excessive; (2) the prosecutor made improper comments at sentencing when he "impliedly suggested" that the court exceed the sentence agreed upon in the plea agreement; (3) the sentence was imposed in violation of "the spirit of Supreme Court Administrative Directive 76;" (4) his treatment needs exceed the need for maximum incarceration; and (5) the court's use of section 4204(k) is inconsistent with SENTAC policy.
The sentence was not excessive.
Defendant argues that his sentence was excessive. He asserts that a "seasoned prosecutor determined that under the totality of circumstances, and compared with similar cases handled by his office, that 7 months was a reasonable amount of Level 5 time." Defendant expressly recognizes, however, that sentencing authority is vested in the court and not in the office of the prosecutor.
After a review of the record the court concludes that Defendant's sentence was not excessive. This is Defendant's third DUI conviction within the past five years and his second within the past two years. He was pulled over by a police officer for driving in excess of 80 m.p.h. on I-495. After being stopped Defendant swayed when he walked and his eyes were glassy and bloodshot. Defendant refused to undergo field sobriety tests and refused an intoxilyzer test. He was then charged with DUI.
While out on bail for this offense Defendant was involved in a one car accident in Newport. When police arrived they observed that Defendant struck two light posts and a tree. Defendant told the police he had ostensibly swerved to avoid "something" in the middle of the road. The police observed that Defendant struck two light posts and a tree while ostensibly swerving to avoid "something." Because of his injuries Defendant was taken to the emergency room where his blood alcohol content was measured at .021, well in excess of the legal limit of .008.
Defendant has previously been charged with multiple offenses, all or some of which appear to be alcohol-related.
• In 2008 he was imprisoned for convictions of riot and conspiracy second degree. These convictions arose from a gang-related incident in which a victim was shot to death.
• A few months after his release from prison in 2009 Defendant led Delaware police on a 100 m.p.h. chase on I-95 into Pennsylvania where he crashed his car. He was convicted of assorted offenses in Delaware and DUI in Pennsylvania as a result of this incident.
• In the next two years Defendant was convicted of several driving related offenses on four separate occasions. His convictions included driving without a valid license, driving ...