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State v. Bover

Superior Court of Delaware, Sussex

June 7, 2017

State of Delaware
Paris Bover,

          SUBMITTED: May 5, 2017


          Dear Counsel:

         Before the Court is Defendant, Paris Boyer's ("Defendant"), Motion for Modification of Sentence.[1] For the reasons expressed below the Motion is DENIED.

          From November 30, 2015 to December 7, 2015, Defendant went to trial for the charges in case # 1409003291A. The verdict was mixed. Defendant was found guilty of one count of Second Degree Conspiracy, two counts of Theft less than $1, 500.00, one count of Theft by False Pretenses less than $1, 500.00, and one count of Third Degree Burglary. The jury either acquitted Defendant or was hung on the remaining charges. Rather than retrying the case, the parties agreed to resolve all of Defendant's pending charges by a plea deal. On February 17, 2016, Defendant pled guilty to three counts of Third Degree Burglary, one count of Possession of Burglary Tools, and one count of Theft less than $1, 500.00 from a Senior. As part of the plea agreement, Defendant agreed to be sentenced under 11 Del. C. § 4214(a) as a habitual offender for one of the Third Degree Burglary charges. On March 18, 2016, after review of the presentence investigation, Defendant was sentenced to 15 years at Level Five as a habitual offender for one Third Degree Burglary charge. He received probation for the remaining charges.

         Defendant appealed his sentence to the Delaware Supreme Court. He argued that "the trial court abused its discretion in sentencing the defendant to fifteen (15) years of incarceration for breaking into a vehicle. The Court sentenced the Appellant with a closed mind, by attempting to balance the sentences of that of Appellant and his co-defendant despite the vast disparity in the crimes they committed."[2] The Supreme Court upheld the sentence stating, "Boyer's claim is without merit...[T]he Superior Court did not sentence Boyer with a closed mind, as it considered a number of factors when determining his sentence...Accordingly, the Superior Court did not abuse its discretion when sentencing Boyer."[3]

         On June 15, 2016, Defendant first filed this Motion for Modification of Sentence. Because Defendant had an appeal pending before the Supreme Court, this Court stayed any action on this Motion until the appeal concluded. Such action is permissible under Rule 35(b).[4]On November 29, 2016, the Supreme Court issued a record of mandate, upholding the sentence. On December 16, 2016, Defendant refiled this Motion.

         When considering a motion under Rule 35, the Court must first analyze whether any applicable procedural bars apply.[5] First, the motion must be made within 90 days from the date of the sentence.[6] This Motion was first filed less than 90 days after the imposition of the sentence. Defendant was sentenced on March 18, 2016. The Motion for Modification of Sentence was filed on June 15, 2016, three days before the deadline.

         Second, the Court will not hear repetitive requests for a sentence modification.[7] While Defendant may merely repackage and attempt to reargue assertions he made at the sentencing hearing and to the Supreme Court in this Motion, this is his first motion for reduction of sentence. Thus, the Motion cannot be procedurally dismissed on this basis.

         The purpose behind Rule 35(b) "has historically been to provide a reasonable period for the court to consider alteration of its sentencing judgments."[8] When the motion is filed within 90 days of the sentence, "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"[9] Here, the Court sees no reason to alter its previous sentence; the sentence is appropriate. None of the arguments advanced by Defendant in this Motion are novel. The instant Motion merely reargues points that were already brought up at the sentencing hearing and in the Supreme Court appeal.

          Defendant's background, criminal history, statements of family members, and other factors were considered by this Court at the sentencing hearing. The transcript reads as follows:

THE COURT: Very well. I have listened to what counsel have shared with me, I have listened to what the defendant has stated to the Court in his allocution, I have listened to what his father has had to share, and I have read his mother's letter.
In this case a judge has to balance factors in an attempt to come up with a fair sentence. And this is easier said than done.
There are mitigating factors in your case. The mitigating factors would be what I call the childhood without the benefit of a stable home. That was not your fault. You had basically an absent father. He was here today, but the information in the report shows that he was largely absent from your life. And apparently, you might have had a stepfather in ...

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