Submitted: June 1, 2015
Julie A. Finnochiaro, Deputy Attorney General Mr. Horace D. Johnson, pro se Investigative Services Office
ORDER DENYING MOTION TO REDUCE SENTENCE
Paul R. Wallace, Judge
This 8th day of June, 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 August 26, 2014, Horace D. Johnson pleaded guilty to Possession of a Destructive Weapon (a sawed-off shotgun) and Drug Dealing - Marijuana (as a class C felony). In the same agreement, Johnson admitted to a then-pending violation of probation ("VOP") from a prior drug dealing-heroin conviction. He was immediately sentenced to serve: (1) VOP-drug dealing – 18 months at Level V; possession of the sawed-off shotgun – five years at Level V suspended after Johnson serves six months of imprisonment; and drug dealing – 15 years at Level 5 suspended in its entirety for periods of Level IV supervision and intensive probation. The Court ordered that the unsuspended Level V periods are to run consecutively.
(2) Johnson filed no direct appeal from his convictions or sentence.
(3) Instead, Johnson has now docketed the present motion under Superior Court Criminal Rule 35(b) requesting reduction of his cumulative two-year Level V term by six months. In short, Johnson asks the Court to convert the entire period of imprisonment imposed for the sawed-off shotgun count to additional Level IV time. According to Johnson, his term of imprisonment should be reduced because of his rehabilitative efforts while in prison and his life plans for when he is released.
(4) The Court may consider such a motion "without presentation, hearing or argument." The Court will decide this motion on the papers filed.
(5) When considering motions for sentence reduction, this Court addresses any applicable procedural bars before turning to the merits.Johnson was sentenced on August 26, 2014; his sentence reduction motion was docketed on June 1, 2015 – that is, more than nine months after the imposition of his sentence.
(6) After 90 days have elapsed from sentencing, an inmate seeking to reduce a sentence of imprisonment on his own motion must demonstrate "extraordinary circumstances" for the granting of relief under Criminal Rule 35(b). This is because Rule 35(b) provides that the Court may reduce a sentence upon application outside of 90 days of the imposition of the sentence only in extraordinary circumstances or pursuant to 11 Del. C. § 4217.
(7) In order to uphold the finality of sentencing judgments, a heavy burden is placed on the defendant to prove extraordinary circumstances when a reduction motion is filed outside of 90 days of the sentence's imposition. The term "extraordinary circumstances" is generally defined as "[a] highly unusual set of facts that are not commonly associated with a particular thing or event." And in the Rule 35(b) context, "extraordinary circumstances" are those which "specifically justify the delay;" are "entirely beyond a petitioner's control;" and "have prevented the applicant from seeking the remedy on a timely basis."
(8) Johnson fails to allege grounds that substantiate the express "extraordinary circumstances" exception to overcome Rule 35(b)'s time-bar. In fact, the grounds he alleges have been specifically and consistently rejected by Delaware's courts as adequate to qualify as "extraordinary circumstances" under Rule 35(b). Rather such claims are properly addressed under title 11, section 4217.
(9) Consequently, the Court must deny Johnson's motion to reduce his sentence.
NOW, THEREFORE, IT IS ORDERED that Horace D. Johnson's motion for reduction ...