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State v. Williams

Superior Court of Delaware

October 16, 2018

STATE OF DELAWARE,
v.
ASA WILLIAMS Defendant.

          Submitted: July 17, 2018

          ORDER DENYING MOTION TO REDUCE OR MODIFY SENTENCE

          PAUL R. WALLACE, JUDGE.

         This 16th day of October, 2018, upon consideration of the Defendant Asa Williams's pro se Motion for Sentence Reduction or Modification (D.I. 15), his supplement thereto (D.I. 16), and the record in this matter, it appears to the Court that:

         (1) On November 27, 2017, a New Castle County grand jury indicted Williams for two counts of Rape in the First Degree, and one count each of Unlawful Imprisonment in the Second Degree, Terroristic Threatening, Malicious Interference with Emergency Communications and Resisting Arrest. [1]

         (2) On May 16, 2018, Williams pleaded guilty to one count of Rape in the Third Degree (as a lesser-included offense), one count of Resisting Arrest, and one count of Unlawful Imprisonment in the Second Degree. He did so in exchange for dismissal of the remaining charges and joined with the State in a favorable sentencing recommendation (a total of three years unsuspended imprisonment with other terms). [2]

         (3) Williams was immediately sentenced to: (a) for Rape Third Degree (PN17-09-1247) - 25 years at Level V, suspended after three years for two years at Level III probation; (b) for Resisting Arrest (IN17-09-1253) - one year at Level V, suspended for one year at Level III; and (c) for Unlawful Imprisonment Second Degree (IN 17-09-1448) - one year at Level V, suspended for one year at Level III. [3] The first two years comprise a minimum term of incarceration that must be imposed and cannot be suspended. [4] In addition to the terms and conditions of his sentence, Williams is required, by statute, to register as a sex offender. [5]

         (4) Williams filed no direct appeal from his convictions or sentence.

         (5) Instead, Williams docketed the present motion under Superior Court Criminal Rule 35(b) requesting that the Court modify his sentence for third degree rape to "lower [his] sentence to 2 years & lower his Tier 3 Sex Offender Registration to Tier 1 or Tier 2 sex offender." [6] According to Williams, this relief is appropriate because of his: (a) lack of prior incarceration; (b) promise of employment upon release; (c) family's hardship without his assistance; (d) family support; (e) positive mental health evaluation and treatment efforts; and (6) perception that Tier 3 sex offender registration is too harsh for him as he is "not a sexual deviant" and poses "no threat for recidivism or reoccurance [sic]." [7]

         (6) The Court may consider such a motion "without presentation, hearing or argument." [8] The Court will decide this motion on the papers filed.

         (7) When considering motions for sentence modification, "this Court addresses any applicable procedural bars before turning to the merits." [9] There are no procedural bars to the consideration of Williams's request under Rule 35(b).

          (8) 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. [10] 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. [11] "The reason for such a rule is to give a sentencing judge a second chance to consider whether the initial sentence is appropriate." [12] A request for leniency and reexamination of the sentencing factors is precisely the stuff of which a proper and timely Rule 35(b) motion is made. [13] Under every iteration of Delaware's criminal rules governing motions to reduce sentences, such entreaties are addressed to the sound discretion of this Court. [14] 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.[15] As Williams appears to recognize, two years of his unsuspended imprisonment is comprised of a minimum mandatory term that had to be imposed and cannot be suspended or reduced. [16]

         (9) But Williams fails to recognize the Court's role in determining his tier designation under Delaware's Sex Offender Registration and Notification Act ("SORNA") and the nature of that requirement under Delaware law. Williams's request that the Court "lower Tier 3 Sex Offender Registration to Tier 1 or Tier 2 Sex Offender" is not cognizable under Rule 35.

         (10) Williams suggests in this sentence modification motion that he should be relieved of his current Tier III designation and given only a Tier I or Tier II designation. But Williams's Tier III sex offender registration requirement is not a term or condition of his "sentence." While it is noted in Williams's sentencing order, any SORNA requirement is a mere "collateral consequence" of a defendant's conviction for a sex offense, and not a term or condition of the actual sentence itself. [17]

         (11) And in Delaware, a sentencing court "has no discretion in making [a tier] determination [because] the statute specifies what offenses will result in designation to each separate Tier level." [18] Tier assignments are mandatory and "based solely upon the charge of which the sex offender was convicted without -regard to the facts and circumstances of a particular case." [19] The statute, therefore, is ...


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