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State v. Johns

Superior Court of Delaware

June 7, 2018

STATE OF DELAWARE,
v.
DARIUS K. JOHNS, Defendant

          Submitted: May 8, 2018

         Cr. A. Nos. IN17-03-1270, IN17-03-1280, IN17-03-1695, IN17-03-1292

          James K. McCloskey, Deputy Attorney General

          Mr. Darius K. Johns, pro se

          ORDER DENYING MOTION TO REDUCE SENTENCE

          PAUL R. WALLACE, JUDGE.

         This 7th day of June, 2018, upon consideration of the Defendant Darius K. Johns's ("Johns")pro se Motion for Sentence Reduction (D.I. 17) and the record in this matter, it appears to the Court that:

         (1) On October 17, 2017, Defendant Darius K. Johns pleaded guilty to one count of Robbery Second Degree, one count of Robbery First Degree, one count of Possession of a Firearm by a Person Prohibited ("PFBPP"), and one count of Conspiracy Second Degree[1] in exchange for dismissal of the remaining indicted charges and a favorable sentence recommendation by the State (no more than the applicable twenty-year minimum).[2]

         (2) Johns's sentencing occurred several months later, after a pre-sentence investigative report had been prepared and the State had filed an habitual criminal petition. Johns was sentenced: (a) for Robbery Second Degree (IN 17-03-1270) -five years at Level V to be served under the provisions of the Habitual Criminal Act;[3](b) for PFBPP (INI 7-03-1695) - ten years at Level V; (c) for Robbery First Degree (INI 7-03-1280) - 25 years at Level V, suspended after serving five years for diminishing levels of supervision; and (d) for Conspiracy Second Degree (IN 17-03-1292) - two years at Level V that was suspended in whole for probation.[4] Johns's cumulative 20-year term of unsuspended imprisonment is comprised wholly of minimum terms of incarceration that must be imposed and cannot be suspended.[5]

          And Johns's several terms of unsuspended of incarceration must be served consecutively.[6]

         (3) Johns filed no direct appeal from his convictions or sentence.

         (4) Instead, Johns docketed the present motion under Superior Court Criminal Rule 35(b)[7] requesting reduction of his cumulative 20-year Level V term by "remov[ing] some time off [his] sentence" via suspension of a ten-year portion for program participation while he is imprisoned. According to Johns, his term of imprisonment should be reduced because his current sentence does not permit him to participate in any programs that would treat his long-suffered drug problem, which he claims has caused him, in part, to commit crimes since he was nine years old.[8]

         (5) The Court may consider such a motion "without presentation, hearing or argument."[9] The Court will decide this motion on the papers filed.[10]

         (6) 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.[11] 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.[12] "The reason for such a rule is to give a sentencing judge a second chance to consider whether the initial sentence is appropriate."[13] But, while the Court has wide discretion to reduce a sentence upon a timely Rule 35 application, the Court has no authority to reduce or suspend the mandatory portion of any substantive statutory minimum sentence.[14]

         (7) As noted above, the 20 years of unsuspended imprisonment consists entirely of minimum terms of incarceration; they cannot be suspended or reduced.[15]John's request to reduce his Level V term far short of the 20 years would clearly violate the minimum terms required under 11 Del. C. ...


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