Submitted: January 11, 2019
JEFFREY J CLARK JUDGE
Defendant's Motion for Sentence Modification -
19th day of March, 2019, having considered
Defendant Marshall Rivers' ("Mr. Rivers")
Motion for Sentence Modification and the record in this case,
it appears that:
Rivers pled guilty to Carrying a Concealed Deadly Weapon and
Robbery Second Degree on July 16, 2018, on the day he was
scheduled to go to trial regarding a twelve count indictment.
Before his plea, the parties jointly represented that Mr.
Rivers qualified as a habitual offender pursuant to 11
Del. C. §4214(d). Because of his extensive
prior criminal record, he faced eighty years minimum
mandatory incarceration had he been convicted of all charges.
Pursuant to the plea agreement, the parties recommended that
he be sentenced to an aggregate of thirteen years at Level V,
suspended after four years, to be followed by six months
Level IV Work Release, followed by one year at Level III
probation. The Court ordered a presentence investigation.
After considering the report and all relevant factors, it
sentenced Mr. Rivers to six years of unsuspended Level V time
as opposed to the four years recommended by the parties.
Because this exceeded the sentence recommended by the
parties, Mr. Rivers seeks a modification of sentence.
During Mr. Rivers' July 16, 2018, plea colloquy, the
Court asked him a series of questions to determine whether he
was entering his plea knowingly, intelligently, and
voluntarily. Most relevant to this motion was the following:
The Court: You understand, sir, that the Court is not bound
by any sentencing agreement that you have made with the
Mr. Rivers: Yes, your Honor.
Mr. Rivers checked the box indicating "No" on the
Truth-in-Sentencing Guilty Plea Form next to the question
"[h]as anyone promised you what your sentence will
After he entered his plea, the parties jointly recommended
deferring his sentencing until July 20, 2018. While the Court
followed the recommendation for deferred sentencing, it
nevertheless cautioned Mr. Rivers again that it was not bound
by the plea agreement's recommended sentence.
July 20, 2018, the Court convened for his sentencing but Mr.
Rivers was not present. After the Court recessed, the
attorneys left the courtroom. Mr. Rivers then appeared and
claimed that he had been in the wrong courtroom. Contrary to
his claim, the Deputy Attorney General reported that she in
fact saw him after she exited the courtroom and that he was
climbing the stairs from the courthouse's first floor
where there were no open courtrooms. Next, the Court
reconvened and addressed the matter. Namely, it stated:
The Court: … I took the plea with you earlier in the
week. The Court does have to admit that it was concerned with
your demeanor. You were laughing in part during the taking of
the plea, and it's been represented that you do have a
significant record which I'm not familiar with now as
I'm sitting here. The Court was very clear that you were
to appear here, be on time, and be ready for sentencing in
this deferred sentencing.
Furthermore, although the Court did not address it on the
record, based upon his speech and his demeanor, the Court
concluded that Mr. Rivers was impaired. Based upon what the
parties jointly represented to the Court was his significant
criminal history, the violent nature of the armed robbery at
issue in the sentencing, and his demeanor both on the day of
his scheduled trial and on the day of his sentencing, the
Court ordered a presentence investigation.
After the Court's Investigative Service Office completed
its report, the Court sentenced Mr. Rivers on September 25,
2018. When sentencing him, the Court considered the
presentence report, the arguments of counsel, Mr. Rivers'
statement to the Court, and the circumstances surrounding the
armed robbery at issue. The Court found no mitigating factors
relevant to his sentencing. In contrast, it found five
aggravating factors, including (1) Mr. Rivers' prior
violent criminal conviction history, (2) the need for
correctional treatment, (3) his failure to accept
responsibility, (4) his demonstrated lack of amenability, and
(5) undue depreciation of the offense. While SENTAC
guidelines provided ...