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In re State

Superior Court of Delaware, Sussex

August 29, 2017

State of Delaware
v.
Melvin Morse,

          SUBMITTED: August 21, 2017

          Michael W. Modica, Esq., Melanie Withers, Esq.

          RICHARD F. STOKES, JUDGE.

         Dear Counsel:

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

         On April 11, 2014, Defendant was found guilty of Reckless Endangering in the First Degree, Reckless Endangering in the Second Degree, and three counts of Endangering the Welfare of a Child. Defendant was sentenced as follows: for Reckless Endangering in the First Degree, five years at Level Five, suspended after three years for two years at Level Three; for Reckless Endangering the in Second Degree, one year at Level Five, suspended for one year at Level Three; and for each of the three counts of Endangering the Welfare of a Child, one year at Level Five, suspended for one year at Level Three. All Level Three time was to be served concurrently.

         Defendant appealed his conviction to the Delaware Supreme Court. The Supreme Court affirmed the conviction on August 26, 2015.

         On October 13, 2015, Defendant filed his first Motion for Modification of Sentence. On October 27, 2015, the Motion was denied due to untimeliness.

         On February 7, 2017, Defendant first filed this, his second, Motion for Modification of Sentence. Defendant has served all of his Level Five time, but he seeks to have his remaining Level Three time either discharged or reduced.

         When considering a motion under Rule 35, the Court must first analyze whether any applicable procedural bars apply.[2] First, the motion must be made within 90 days from the date of the sentence.[3] However, when the Defendant seeks a modification to Level Three probation, there is no timing requirement.[4] Therefore, this request is timely.

         Second, the Court will not hear repetitive requests for a sentence modification.[5] As previously mentioned, this the Defendant's second motion under Rule 35. Here, the fact that Defendant is seeking discharge or reduction of his Level Three probation is irrelevant. The bar to successive Rule 35 motions applies to all types of sentence modification requests.[6] Thus, Defendant's Motion is denied on that basis. However, in the alternative, the Court considers Defendant's substantive arguments.

         The purpose behind Rule 35(b) "has historically been to provide a reasonable period for the court to consider alteration of its sentencing judgments."[7] When considering 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" [8] Here, the Court sees no reason to alter its previous sentence; the sentence is appropriate.

         Defendant states that he suffers from numerous serious health conditions. He has been diagnosed with prostate cancer, Hurthle Cell thyroid cancer, and metastatic lung cancer.[9]Additionally, Defendant has been treated with Interferon for Hepatitis C. Due to these health concerns, Defendant would like for his Level Three probation time to be reduced or discharged. To date, Defendant has completed about one year of his two years on Level Three probation.

         Defendant claims to be remorseful and acknowledges that he "terrorized, abused, and bullied a young fragile child who had the right to feel safe and loved."[10] Furthermore, he has completed numerous treatment and rehabilitative programs while incarcerated, such as the Key Program, Greentree Residential Substance Abuse Rehabilitative Program, the Impact of Crime on Victims Seminar, and the Catholic-Charities Anger Management Program. Defendant currently participates in mental health counseling. As a result of these efforts, Defendant claims to be a changed man. He feels that he has been adequately punished, as he has lost his medical license, his reputation has been destroyed, and he is reviled in the community. Defendant also notes that he has ...


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