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State v. Rivers

Superior Court of Delaware, Kent

March 19, 2019

STATE OF DELAWARE,
v.
MARSHALL RIVERS, Defendant.

          Submitted: January 11, 2019

          ORDER

          JEFFREY J CLARK JUDGE

         Upon Defendant's Motion for Sentence Modification - DENIED

         On this 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:

         1. Mr. 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.

         2. 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 State?
Mr. Rivers: Yes, your Honor.

         Furthermore, 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 be?"

         3. 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.

         4. On 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.

         5. 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.

         6. 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 ...


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