Submitted: September 16, 2019
Defendant Damion Thomas's Motion for Sentence
A. Braunsberg, Esquire, Deputy Attorney General, Department
of Justice, Wilmington, Delaware, for the State of Delaware.
Thomas, pro se.
MEMORANDUM OPINION AND ORDER
R. Wallace, Judge.
the Court is Defendant Damion Thomas's motion for
sentence reduction or modification. Thomas, who is serving
mandatory terms of incarceration for attempted first degree
robbery and possession of a firearm during the commission of
a felony (PFDCF), asks the Court to alter his sentence so
that he will serve those terms concurrently instead of
consecutively. For the reasons stated below, Thomas's
application is DENIED.
Factual and Procedural Background
2017, a young man finished his shift and left his job at a
New Castle hoagie shop. When he was just a short distance
from work, that young man was approached by Thomas who
trained a handgun on him and ordered, "give me all your
s-t!" When the victim didn't respond immediately to
that demand, Thomas hit him in the head with the butt of the
gun. The victim fell to the ground. While he was down, Thomas
rifled through the victim's pockets and Thomas's
compatriot stuck the victim again with the butt of a
handgun-this time, in the face. Both Thomas and his partner
fled when a Samaritan interceded. But they were later
identified when police traced a cell phone they had left
mid-July afternoon in 2017, another young man pulled into the
parking lot of a New Castle apartment complex to complete a
pre-arranged deal to buy marijuana and opioids from Thomas.
Once this young man parked, Thomas hopped in the car's
rear driver's seat behind him; Thomas's cohort got
into the front passenger seat. They demanded the young man
hand over his cash. He refused. So Thomas pepper-sprayed him
while Thomas's accomplice clubbed the victim with what
was believed to be a handgun. The victim reacted by putting
the car in gear and driving off erratically. Thomas and his
partner bailed out and fled.
two attacks yielded two separate indictments that included:
one count each of Robbery First Degree, Assault First Degree,
Possession of a Deadly Weapon by a Person Prohibited, and
Possession of a Firearm by a Person Prohibited; and, two
counts each of Attempted Robbery First Degree, Assault Second
Degree, Conspiracy Second Degree, Possession of a Deadly
Weapon During the Commission of a Felony, and
PFDCF. These charges were resolved by two
separate agreements through which Thomas pleaded guilty to
one count each of Robbery Second Degree (as a lesser
offense), PFDCF, Attempted Robbery First Degree, Assault
Second Degree, and Conspiracy Second Degree.
sentencing for both matters occurred in September 2018, a few
months after his second plea was entered and a combined
comprehensive presentence investigative report was prepared.
Thomas was sentenced to a total period of forty-three years
of incarceration, to be suspended for community supervision
after serving six years in prison. Those six years of
imprisonment are the sum of two separate three-year minimum
mandatory terms of incarceration imposed for the attempted
first degree robbery count and for the PFDCF
count. Each of those terms was statutorily
required and could not be suspended in any
part. And under the law extant at the time of
Thomas's crimes, guilty pleas, and sentencing, those two
terms could not be made to run concurrently.
filed no direct appeal from his conviction or sentence.
Instead, some ten months after his sentencing, he filed the
present motion requesting sentence reduction-that is, that
his prison term now be halved.
Neither This Court's Criminal Rule 35(b) Nor "House
Bill 5" Permit The Court to Modify Thomas's Sentence
to Allow His Terms of Imprisonment to Run
addressing a sentence modification request, the Court must
determine whether the procedural mechanism the inmate invokes
is available in his circumstance. Thomas asks that the
Court modify or reduce his sentence by ordering that his two
mandatory unsuspended consecutive three-year terms of
imprisonment be allowed to served concurrently.
scores of other inmates seeking such diminution of their
pre-2019-imposed sentences over the last few months, Thomas
incants "House Bill 5" in his petition. "House
Bill 5" refers to the recent initiating legislation of
the 150th General Assembly that further expanded a
Delaware sentencing judge's authority to impose
concurrent, rather than consecutive terms of
confinement. But just like those many other inmates,
Thomas identifies no court rule, statute, or other procedural
provision that would allow the Court to now revisit his
sentence. For good reason-there is none.
Superior Court Criminal Rule 35(b) is not available to incite
review based on post-sentencing statutory changes.
does not specifically cite this Court's Criminal Rule
35(b) in his motion. Yet throughout his papers, he does
specifically ask the Court to "modify or reduce"
his sentence of imprisonment. And, as a general matter,
"[t]here is no separate procedure, other than that which
is provided under Superior Court Criminal Rule 35, to reduce
or modify a sentence." But Rule 35(b) is not now, nor
ever has been, an instrument for re-examination of previously
imposed sentences in light of subsequent statutory changes.
purpose of Superior Court Criminal Rule 35(b) is to provide a
reasonable period for the Court to consider alteration of its
sentencing judgment. "The reason for such a rule is to
give a sentencing judge a second chance to consider whether
the initial sentence is appropriate." And "[a]
request for leniency and reexamination of the sentencing
factors [extant when the original sentence was imposed are]
precisely the stuff of which a proper and timely
Rule 35(b) motion is made."
untimely Rule 35(b) application, on the other hand, is
permitted only when an inmate demonstrates
"extraordinary circumstances" for
consideration.The term "extraordinary
circumstances" is generally defined as "[a] highly
unusual set of facts that are not commonly associated with a
particular thing or event." And for the purposes of
Rule 35(b), "extraordinary circumstances" have been
found only "when an offender faces some genuinely
compelling change in circumstances that makes a resentencing
short, Rule 35(b) is a rule limited to reconsideration and
altering of a sentence either upon: (1) immediate
reexamination of factors individual to the moving inmate and
his or her particular case; or (2) later consideration only
when there is a truly compelling change in that inmate's
individual circumstances that presents an urgent need for
revision of the sentence's terms. It is not
some contrivance allowing review of any existing sentencing
judgment because of any favorable change in statutory
sentencing law occurring after an inmate's sentence was
imposed and based on some systemic shifting of principles or
policies not specific to the inmate seeking
relief. That type of sentence review-if and when
available-is governed by statutes and rules carefully
tailored to such purpose. Rule 35(b) is certainly
"no vehicle" to engage when seeking such sentence
"House Bill 5"-the most recent amendment of §
3901(d) giving Delaware judges greater discretion to impose
concurrent terms of imprisonment for certain crimes-does not
apply retroactively to sentences imposed before June 25,
2019, the effective date of the amendment.
3901 of the Delaware Criminal Code provides for the fixing of
terms of imprisonment. For almost forty years, § 3901(d)
read: "No sentence of confinement of any criminal
defendant by any court of this State shall be made to run
concurrently with any other sentence of confinement imposed
on such criminal defendant." The first lifting of this
complete ban on concurrent terms of incarceration came on
July 9, 2014, when the General Assembly amended §
3901(d) to provide:
The court shall direct whether the sentence of confinement of
any criminal defendant by any court of this State shall be
made to run concurrently or consecutively with any other
sentence of confinement imposed on such criminal defendant.
Notwithstanding the foregoing, no sentence of confinement of
any criminal defendant by any court of this State shall be
made to run concurrently with any other sentence of