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State v. Powell

Superior Court of Delaware

September 27, 2017

STATE OF DELAWARE,
v.
EDWARD L. POWELL, Defendant.

          Submitted: August 9, 2017

          ORDER SUMMARILY DISMISSING MOTION TO REDUCE OR MODIFY SENTENCE

          Paul R. Wallace, Judge

         This 27th day of September, 2017, upon consideration of the Defendant Eric L. Powell's Motion for Sentence Reduction or Modification (D.I. 19), and the record in this matter, it appears to the Court that:

         (1) On January 30, 2017, Defendant Edward L. Powell ("Powell") pled guilty to one count each of Possession of a Deadly Weapon by a Person Prohibited and Endangering the Welfare of a Child.[1] His sentencing occurred several months later, on May 9, 2017.[2] Powell was sentenced: for Possession of a Deadly Weapon by a Person Prohibited (IN16-07-1202) - 2 years at Level V, suspended after six months at supervision Level V for one year and six months at Level IV (DOC Discretion), suspended after six months at Level IV for one year at Level III, to be served under the provisions of the Habitual Criminal Act;[3] and for Endangering the Welfare of a Child (IN16-07-1489) - 1 year at Level V suspended for 1 year at Level II (DOC Discretion).

         (2) Powell filed no direct appeal from his convictions or sentence.

         (3) Instead, he docketed the present motion under Superior Court Criminal Rule 35(b)[4] requesting: (a) that he be released from Level V; and (b) that he be held at Level III until Level IV is available. According to Powell, his term of imprisonment should be reduced and his terms of confinement modified because: (a) his family needs his support; (b) he requires medical care; (c) he is concerned he will lose his home after certain missed payments; (d) he received ineffective assistance of counsel;[5] and (e) he has had difficulty thus far coordinating the terms of his Level IV confinement.

         (4) The Court may consider such a motion "without presentation, hearing or argument."[6] The Court will decide this motion on the papers filed.[7]

         (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.[8] 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.[9] "The reason for such a rule is to give a sentencing judge a second chance to consider whether the initial sentence is appropriate."[10]

         (6) The Court has fully reviewed Powell's application, the record in his case, his prior supervision history, and all sentencing information available. The Court noted the following aggravators in its Sentencing Order: (a) Powell's repetitive criminal activity and statutory habitual criminal offender status; (b) "the vulnerability of the children victims who witnessed [Powell]'s behavior"; and (c) "that . . . it would unduly depreciate the nature and demonstrate[d] circumstances of this offense and [Powell]'s history of endangering others to impose a lesser sentence."[11] The Court finds that when all sentencing factors in his case are considered, Powell's family and changed residential circumstances do not warrant sentence reduction here. Nor does Powell allege sufficient grounds for his claim of inadequate medical treatment. Instead, after a thorough review of the merits of Powell's request, the Court finds its original sentencing judgment as to the Level V term for Powell's Possession of a Deadly Weapon by a Person Prohibited conviction appropriate for the reasons stated at the time it was rendered. The Court further finds its judgment as to the structure of the non-incarcerative terms of Powell's sentence remains integral to the Court's "sentencing scheme" or "plan" in Powell's case.[12]

         (7) In turn, the Court will exercise its discretion[13] under Rule 35(b) and DENY Powell's request to reduce or modify the Level V, IV and III terms of his sentence.

         SO ORDERED.

---------

Notes:

[1] Plea Agreement, State v. Powell, ID No. 1607005177 (Del. Super. Ct. Jan. 30, ...


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