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State v. Iverson

Superior Court of Delaware

March 5, 2019

STATE OF DELAWARE,
v.
RICHARD IVERSON, Defendant.

          ORDER

          VIVIAN L. MEDINILLA JUDGE.

         AND NOW TO WIT, this 5th day of March, 2019, upon consideration of Defendant's Motion captioned "[Section] 3901 Fixing Term of Imprisonment Under House Bill #42," the sentence imposed upon the Defendant, and the record in this matter, it appears to the Court that:

         1. On April 26, 2010, Defendant was indicted by a Grand Jury of Murder in the First Degree, Robbery in the First Degree, Possession of a Firearm During the Commission of a Felony, Possession of a Firearm by a Person Prohibited, and Receipt of a Stolen Firearm. On May 11, 2011, Defendant pled guilty to the lesser included offense of Murder in the Second Degree and to Possession of a Firearm During the Commission of a Felony. As to the lesser included offense of Murder in the Second Degree, Defendant received 19 years of Level V incarceration, of which 15 years was a mandatory minimum period. As to Possession of a Firearm During the Commission of a Felony, Defendant received a total 5 years mandatory minimum Level V incarceration. In total, Defendant received 24 years at Leve1 V incarceration, including 20 years of minimum mandatory time, with periods of probation to follow.[1]

         2. Defendant moves for a third time[2] to modify his sentence under Delaware Superior Court Criminal Rule 35.[3] Defendant previously argued unsuccessfully for modification claiming he was unaware that his sentence could exceed the mandatory minimum term of 20 years. This Court found that his argument for reduction was not supported by the record.[4]

          3. Defendant's Motion now requests that this Court modify his sentence to run his period of incarceration concurrently.[5] He appears to argue that "Subsection 297 and Volume 79 of the Laws of Delaware" permit such relief. He also cites to "Section 3901 under House Bill 42" as the basis of his current motion. The Court accepts that he is referencing the provisions found under l l Del. C. § 3901(d). His argument is misplaced.

         4. Section 390l(d) was amended in 2014 to clarify that this Court "shall direct whether the sentence of confinement of any criminal defendant...shall be made to run concurrently or consecutively" to any other sentence of confinement.[6]However it further provides that "no sentence of confinement of any criminal defendant...shall be made to run concurrently with any other sentence of -confinement imposed on such criminal defendant for any conviction" of specific crimes, including Murder in the Second Degree and Possession of a Firearm During the Commission of a Felony.[7] This Court previously denied his first motion in 2011 for the same reasons.[8] Any changes to 11 Del. C. § 3901(d) since that ruling in 2011 do not impact Defendant's sentence because both § 3901(d) and 11 Del. C. § 1447A(e), even as amended, still prohibit a sentence imposed for either Murder in the Second Degree or Possession of a Firearm During the Commission of a Felony to run concurrent with any other sentence.[9] Thus, Defendant's argument for relief on this basis is meritless.

         5. His Rule 35 Motion is filed beyond the 90-day time limit and is also untimely and time-barred.[10] In order to overcome the 90-day time bar in Rule 35(b), Defendant must show that "extraordinary circumstances" forgive the tardiness ofhis motion.[11] The Delaware Supreme Court has defined "extraordinary circumstances" as circumstances which: "'specifically justify the delay;' are 'entirely beyond a petitioner's control;' and 'have prevented the applicant from seeking the remedy on a timely basis.'"[12] This exception is not a plea for leniency nor does it permit "exceptional rehabilitation" to suffice for "extraordinary circumstances."[13]

         6. The Court finds that Defendant's Motion fails to state grounds for "extraordinary circumstances" as required under Rule 35(b) where the motion exceeds the 90-day filing deadline. Nothing in support of his Motion meets his burden of proving the 90-day time bar is overcome in this case.

         7. Defendant's Motion is also procedurally barred as repetitive. "A motion is 'repetitive' as that term is used in Rule 35(b) when it is preceded by an earlier Rule 35(b) motion, even if the subsequent motion raises new arguments."[14]Thus, Defendant's Motion-his third Rule 35 motion for the same sentence-is repetitive as that term is defined under Rule 35(b).

         8. For the foregoing reasons, Defendant's Motion is time-barred, repetitive, and without merit under Rule 35.

         NOW, THEREFORE, IT IS HEREBY ORDERED THAT Defendant's motion is DENIED.

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Notes:

[1] On March 5, 2018, Defendant pled guilty to the charge of Criminal Solicitation in the Second Degree for Case ID No. 1709009617. On June 22, 2018, Defendant was Sentenced to 1 year of Level V incarceration followed by various Levels of probation. The imposed Level V sentence in this case was ...


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