Submitted: August 16, 2018
12th day of October 2018, upon consideration of Petitioner
Louis J. Tolson's motion for modification of sentence
pursuant to Superior Court Criminal Rule 35(b), and the
State's response in opposition to the motion, it appears
to the Court that:
Petitioner Louis J. Tolson (hereinafter "Mr.
Tolson") moves for a modification of his February 10,
2006 sentence. In 2006, the Court sentenced Mr. Tolson to
twenty years of unsuspended Supervision Level V time,
followed by decreasing levels of probation for drug
trafficking and a weapons related offense. This motion is
well outside the timeline for filing motions for modification
pursuant to Superior Court Criminal Rule 35(b) (hereinafter
"Rule 35(b))." Nevertheless, the sentencing Judge
included, as a term in Mr. Tolson's sentencing order, a
provision recognizing that the State "agrees to a review
of sentence after the defendant serves 7 ½ years at
level 5." By including that provision in the sentencing
order, the Court retained jurisdiction to consider a
sentencing modification outside Rule 35(b)'s time
Tolson had originally petitioned pursuant to 11
Del.C. §4214(f) for a certificate of
eligibility to modify his sentence. The Court issued a
December 20, 2017 Order finding him ineligible to modify his
sentence pursuant to that procedure. The Court clarified in
its Order, however, that he remained free to move for a
modification of his sentence because of the retained
jurisdiction in his original sentencing order.
Tolson now moves for a reduction in his sentence because he
alleges he is rehabilitated. He also emphasizes that he is
fifty-two years old, has served approximately fourteen years
of his sentence, and has taken substantial steps toward
furthering his education while incarcerated. In support of
his motion, he includes eight certificates evidencing
completion of educational and self-improvement programs. As
an exhibit, he also included a Pennsylvania State University
study discussing the relationship between age and recidivism.
State filed a detailed response opposing the motion and
references two reasons for its opposition. First, the State
emphasizes the nature of his 2005 charges and his drug
dealing history. Second, the State relies heavily upon Mr.
Tolson's disciplinary record while incarcerated. In the
State's written opposition, it attached his disciplinary
records. It emphasizes that as recently as July 2015, Mr.
Tolson was found to be defiant of authority. More recently,
through 2017, Mr. Tolson was often not in his cell when
required, and was found to be in possession of contraband.
The State also notes that Mr. Tolson, since 2010, has twice
been upgraded to maximum security based on his conduct.
Furthermore, as recently as early 2018, the Department of
Correction upgraded Mr. Tolson to medium security based on
Court has considered the fact that Mr. Tolson's sentence,
if issued today may have generated a lesser sentence than
that imposed in 2006. Furthermore, the Court has considered
the support of Mr. Tolson's family and friends who
appeared at the hearing on August 16, 2018. They assured the
Court that they would provide him structure and support to
help reintegrate him into the community. The Court does not
question the genuineness of their offer.
However, the Court has also carefully reviewed Mr.
Tolson's prison disciplinary record. Some other
infractions include defiance of authority and physically
resisting correctional officers who tried to correct him.
Some are properly characterized as violent, although his
violent infractions primarily occurred during his earlier
years of confinement. In January 2018, the Department of
Correction increased Mr. Tolson's classification to
medium security because of three institutional misconduct
reports. He also has been reclassified to maximum security
because of misconduct as recently as January 2016. In all,
the Court counts 92 institutional disciplinary write-ups
since Mr. Tolson's initial incarceration.
Court has also considered Mr. Tolson's more recent
conduct while incarcerated. Approximately thirty days before
Mr. Tolson filed his written motion for modification of
sentence, he received a write-up for being off limits and was
found guilty of that offense. Approximately one week after he
filed his written motion in April 2018, he received another
write up but was found not-guilty of that offense. At the
hearing for his motion, he admitted that after the April 2018
write-up, he had at least two additional write-ups prior to
the August hearing.
deciding whether Mr. Tolson's sentence should be reduced,
the Court must necessarily evaluate Mr. Tolson's conduct
while incarcerated. Prior to his incarceration, he had a
significant criminal history. Given his persistent violation
of institutional rules, the Court does not find that he has
sufficiently demonstrated his rehabilitation. It is,
therefore, appropriate to deny his motion for a reduction of
recognition of two circumstances, however, the Court will
permit Mr. Tolson to file one additional motion for reduction
of sentence no sooner than eighteen months from the
date of this Order. First, Mr. Tolson obviously has
supportive family members who persuasively represented their
desire to help him successfully transition into the
community. Second, Mr. Tolson's major and sometimes
violent violations have generally decreased since the initial
part of his Level V sentence. Accordingly, if Mr. Tolson
files an additional motion, the State will be requested to
secure his prison disciplinary records from April 27, 2018,
to the time the Court considers any such motion, so the Court
can review them. Obviously, the Court will carefully review
Mr. Tolson's prison record in the event of a renewed
motion for reduction of sentence.
based on the reasons discussed, Mr. Tolson's motion for
reduction of sentence is DENIED.